false imprisonment
76 The first cause of action relied upon by Mr Fernando is the tort of false imprisonment.
77 In the case of Ruddock v Taylor (2005) 222 CLR 612 at 650, at [140] (Ruddock v Taylor), Kirby J (who was in the minority in the result) observed:
Wrongful imprisonment is a tort of strict liability. Lack of fault, in the sense of absence of bad faith, is irrelevant to the existence of the wrong. This is because the focus of this civil wrong is on the vindication of liberty and reparation to the victim, rather than upon the presence or absence of moral wrongdoing on the part of the defendant. A plaintiff who proves that his or her imprisonment was caused by the defendant therefore has a prima facie case. At common law it is the defendant who must then show lawful justification for his or her actions. (Footnotes omitted.)
78 Kirby J in Ruddock v Taylor at 650, at [138], cited with approval, the following observations by Deane J in Re Bolton; Ex parte Beane (1987) 162 CLR 514 at 528‑529:
The common law of Australia knows no lettre de cachet or executive warrant pursuant to which either citizen or alien can be deprived of his freedom by mere administrative decision or action. Any officer of the Commonwealth Executive who, without judicial warrant, purports to authorise or enforce the detention in custody of another person is acting lawfully only to the extent that his conduct is justified by clear statutory mandate…It cannot be too strongly stressed that these basic matters are not the stuff of empty rhetoric. They are the very fabric of the freedom under the law which is the prima facie right of every citizen and alien in this land. They represent a bulwark against tyranny.
79 In support of his claim, Mr Fernando alleged that the decision to cancel his visa was unlawful because, on the following grounds, he had not been afforded procedural fairness in relation to the cancellation decision made by the Acting Minister on 3 October 2003:
(a) Neither the Acting Minister nor the departmental officers revealed to Mr Fernando, either in summary form or at all, the contents of Annexure L and did not give him the opportunity to make submissions concerning its contents;
(b) The notice calling on Mr Fernando to make submissions had given Mr Fernando only 14 days to make his submissions on why his visa should not be cancelled;
(c) Mr Fernando was in prison at the time that he was given the notice; and
(d) Mr Fernando had posted the submissions called for by the notice before the decision was made, but the Acting Minister had made the decision before the submissions had been received.
80 Mr Fernando went on to allege that by reason of the failure to afford him procedural fairness, when the Acting Minister made the decision to cancel his visa, the Acting Minister had no jurisdiction to do so and, accordingly, the cancellation decision was a nullity and of no effect.
81 Mr Fernando then pleaded that on 5 October 2003, he was released from Acacia prison on parole, but because of the Acting Minister's decision to cancel his visa, "officers and/or servants and/or agents" of the Minister immediately took him into immigration detention. Mr Fernando went on to allege that because the Acting Minister's cancellation decision was unlawful, there was no lawful basis for his detention and that he had been falsely detained from 5 October 2003 to 18 January 2007.
82 The respondents admitted that the decision of the Acting Minister to cancel Mr Fernando's visa was unlawful on the basis that Mr Fernando had been denied procedural fairness because, as in the case of Sales, he had not been given sufficient time to provide submissions, bearing in mind that he had been in prison at the time. Otherwise, the respondents did not admit that there had been a denial of procedural fairness on any of the other grounds alleged by Mr Fernando.
83 I note in passing that, in their further re-amended defence (the defence), the respondents also pleaded a number of matters in response to Mr Fernando's pleading as to the circumstances relating to the cancellation of his visa. However, in light of the respondents' admission that the Acting Minister's cancellation decision was unlawful, and the strict liability nature of the tort of false imprisonment, it is unnecessary to consider these matters in this context.
84 Significantly, however, in this context, is the respondents' plea in para 19 of their defence. At that paragraph, the respondents pleaded as follows:
The respondents admit that [Mr Fernando] was granted parole and released from prison on 5 October 2003 and that because of the [Acting Minister's cancellation] of his visa he was placed in immigration detention. The respondents further state:
(1) that [Mr Fernando] was placed into immigration detention by employees of Australasian Correction Management, who were officers for the purposes of the Migration Act 1958 (Cth) acting under section 189 of that Act;
(2) those officers then
(i) knew that the [Acting Minister] had made the decision cancelling the applicant's visa; and
(ii) suspected on the basis of that decision that the applicant was an unlawful non citizen;
The respondents otherwise deny the allegations in 37 and 38.
85 At para 22(1) of their defence, the respondents pleaded that by reason of the matters pleaded at para 19 of the defence, the detention of Mr Fernando was lawful.
86 The plea in para 19 of the respondents' defence is significant because, as Kirby J observed in Ruddock v Taylor, once an applicant proves that he or she has been detained by a party, the onus is on the party responsible for the detention to demonstrate that the detention was authorised by law.
87 Section 189(1) of the Migration Act, referred to in the defence of the respondents, relevantly provides as follows:
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.
88 In support of their defence to Mr Fernando's claim that the respondents were liable for the false imprisonment of Mr Fernando, the respondents relied upon the case of Ruddock v Taylor.
89 In the case of Ruddock v Taylor, the Minister cancelled Mr Taylor's visa on character grounds relying on s 501(2) of the Migration Act. Mr Taylor was a British subject who was a young child when he immigrated with his family to Australia. He never became an Australian citizen. Following his conviction and imprisonment for sexual offences against children, the Minister cancelled Mr Taylor's permanent residency visa, and he was taken into immigration detention consequent upon the cancellation of his visa. The cancellation of Mr Taylor's visa was found to be unlawful and he was then released from immigration detention. Following his release the Minister cancelled his visa a second time. Mr Taylor was again taken into immigration detention. After a further period in detention, the second cancellation of Mr Taylor's visa was also found to be unlawful. Mr Taylor was again released from immigration detention. Mr Taylor then commenced an action against the Minister for false imprisonment. The District Court in New South Wales awarded Mr Taylor damages in the sum of $116,000. The Minister appealed to the New South Wales Court of Appeal which dismissed the appeal. The Minister then appealed to the High Court.
90 The High Court found that it did not follow from the fact that the decision of the Minister to cancel Mr Taylor's visa was unlawful, that his detention was unlawful. Gleeson CJ, Gummow, Hayne and Heydon JJ observed at 621, at [25]:
[T]he lawfulness of the decision to cancel the respondent's visa, turned upon identifying valid legislative power to do so, and upon whether that power had been lawfully exercised. That directed attention, principally, to s 501 of the Act. By contrast, the lawfulness of the respondent's detention turned upon whether there was statutory or other authority to detain him. That required consideration of s 189.
91 The majority then went on to make observations about the application of s 189 of the Migration Act. At 622, at [27]:
Section 189 is directed not only to cases where an officer knows that a person is an unlawful non-citizen, it extends to cases where the officer reasonably suspects that a person has that status. It follows that demonstrating that a person is not an unlawful non-citizen does not necessarily take the person beyond the reach of the obligation which s 189 imposes on officers. Had it been intended that those who were to be subject to detention by an officer should be confined to those who are in fact unlawful non-citizens, s 189 would have been much simpler. The section would have read, "an officer shall detain an unlawful non-citizen". The reference to an officer's state of mind is explicable only if the section is understood as not confined in operation to those who are, in fact, unlawful non-citizens. Further, the condition upon which the obligation to detain is premised, "[i]f an officer knows or reasonably suspects that a person…is an unlawful non-citizen", is not to be read as excluding from its reach the case where an officer is subjectively convinced that a person is an unlawful non-citizen but later examination reveals that opinion to have been legally flawed. The phrase "knows or reasonably suspects" is expressed disjunctively. Its primary reference is to the officer's subjective state of mind. But the disjunctive expression of the necessary state of mind does not leave, as a middle ground, falling outside the operation of the expression, a case where an officer's subjective opinion has passed from suspicion to certainty of belief but the subject matter of the belief (what the officer "knows") is legally inaccurate. Rather, in such a case the officer "knows or…suspects" that the person is an unlawful non‑citizen and the critical question would be whether the certainty of belief professed by the officer was reasonably based. (Original emphasis.)
92 At 628, at [49], the majority made the following observations:
At the trial of these proceedings, those officers who had been responsible for effecting the respondent's detention gave unchallenged evidence of the steps each had taken before detaining the respondent. Each officer had been provided with what, on its face, appeared to be a regular and effective decision of the Minister to cancel the respondent's visa. Each officer checked whether the respondent held any other visa. Upon finding that he did not, the officer concerned detained the respondent. (Emphasis added.)
93 The majority then went on to observe that each of the apprehending officers reasonably suspected that the respondent was an unlawful non-citizen. The consequence was that the Minister succeeded in showing that there was lawful authority for the detention of Mr Taylor with the consequence that he failed in his action for false imprisonment. The majority, therefore, allowed the appeal from the New South Wales Court of Appeal.
94 McHugh J (who was in the minority), took a different view on the question of whether the appellants had proved that the apprehending officers held the requisite state of mind in order to render the detention of Mr Taylor lawful. At 638, at [97], McHugh J observed:
The onus was on the appellants to establish that Mr Taylor's detention was made with lawful authority, and they failed to do so. The argument for the appellants assumed that the officers had "a reasonable suspicion". But the trial judge made no finding that the officers had either of the mental states referred to in s 189. It is far more probable than not they did not have either of the mental states that that section requires before a person can be lawfully detained. (Original emphasis.)
95 I now deal with the respondents' contentions.
96 First, the respondents contended that Mr Fernando's claim should fail because s 189 of the Migration Act both authorises and requires officers to detain an unlawful non-citizen and Mr Fernando had not alleged in his statement of claim, that the officers who detained him, did not know of the decision to cancel his visa. Mr Fernando, said the respondents, had pleaded that the detention was unlawful solely on the basis of the "defect in the procedure followed in cancelling the applicant's visa".
97 This contention is not accepted. It was sufficient that Mr Fernando proved, as he did, that he had been taken into, and subsequently held in, immigration detention by persons purporting to act on behalf of the first respondent. As is evident from Ruddock v Taylor, it was then for the respondents to show that the detention was lawful. The respondents took on the burden of proving that the detention was lawful by reference to s 189 of the Migration Act in para 19 of their defence.
98 The question is, therefore, whether the respondents have proved that the detention was lawful by reason of s 189 of the Migration Act. This, in turn, gives rise to the question of whether the relevant officers held the state of mind prescribed by s 189, namely, that he or she knew or reasonably suspected that Mr Fernando was an unlawful non-citizen.
99 In this case, notwithstanding that, in their defence, the respondents relied upon the state of mind of each of the apprehending officers to justify the detention of Mr Fernando as lawful, the respondents did not lead evidence from the ACM employees who took Mr Fernando into immigration detention, immediately upon his release on parole from Acacia prison.
100 The respondents did, however, lead evidence from Ms Lockhart, who said that her duties included making arrangements for the detention, removal and deportation of unlawful non-citizens in accordance with the Migration Act. Ms Lockhart said that her standard procedure before making such arrangements, where there had been a visa cancellation, was to satisfy herself that the visa had been cancelled by sighting a copy of the signature page of the Minister's decision. Ms Lockhart said that she did not specifically recall the circumstances of Mr Fernando's visa cancellation, but she did not recall departing from her standard practice.
101 Ms Lockhart deposed that she had prepared and faxed the documents referred to in [53]-[58] above, late on the afternoon of 3 October 2003.
102 In his statement of evidence, Mr Fernando said at [49]-[50]:
The day after I was taken to Perth IDC, two immigration officers interviewed me there. They told me that I had no outstanding court matters, and would be removed from Australia within two days. I told them that I had an application pending in the Federal Court filed the previous week. They appeared to be unaware of this.
After I was asked to go back to the detainee area, I called the AIMS supervisor at the time, and showed him a copy of the document of my Second Application showing the pending Federal Court directions hearing in October. When he saw this, he took it to show it to the Department manager at the detention centre, and asked him to put a hold on my removal.
103 Senior counsel for the respondents cross-examined Mr Fernando in respect of this issue as follows:
You were taken from Acacia Prison into custody by ACM, correct?---ACM, correct, one lady and one man.
Right, and as I understood it from your evidence, you were also interviewed by two immigration officers?---After or before?
After?---Correct.
After you were taken into Perth IDC, you were interviewed by immigration officers, correct?---Correct, the following day. It was a Sunday, I suppose I was taken and the Monday.
…
I just want to ask you about the conversations. The immigration officers, you had been told your visa was cancelled, you were told that you were going to be removed from Australian [sic] within two days. Did you tell the immigration officers that you had an application in the Federal Court?---I certainly did and showed - then I went to the area, the retaining area and I pulled the original document, the Federal Courts and called the supervisor and I asked them to take it to the DIMIA manager.
Right. And you told them that you were challenging the decision cancelling your visa; correct?---I told them that I had appealed against the notice.
Yes?---And I told them that I had appealed against the decision to cancel.
Right. And did you also tell the people from AIMS to ACM, the people who were running the detention centre, that you were appealing against the notice you were appealing against the decision to cancel your visa?---I had told them I had already done.
Right?---And the proof was in my files in the detainee area and I pull the document, the original I gave it to the supervisor, "Look, these guys are trying to - they're saying that I've got no outstanding court matters, please go and show this to the DIMIA manager," and then he did that and then hours later, during lunchtime, I got a call from the Sri Lankan High Commission.
Well, before we get to the Sri Lankan High Commission, you've already agreed that you told the immigration officials that you were challenging the notice and you were challenging the decision to cancel your visa?---No, please - - -
Sorry, when I say - you had already done it?---I had told them that I had already lodged those applications.
Right. And did you tell the same thing to the people from the detention centre that you had challenged the decision to cancel your visa?---I not only told them I showed them the proof.
And from the time that you were in detention until you were released from detention, you had court matters ongoing, didn't you?---From the time I was released - - -
From the time you were put in detention until you were released, you had matters in the Federal Court challenging the decision?---Correct.
Did you discuss those matters with the people in the detention centre?---Yes.
Including the people who were running the detention centre?---Including people who were running the detention centre.
104 The respondents relied on two contentions to show that the relevant officers responsible for the detention of Mr Fernando each held the state of mind prescribed by s 189 of the Migration Act, namely, that he or she knew or reasonably suspected that Mr Fernando was an unlawful non-citizen.
105 I observe that neither of these contentions finds expression in the defence of the respondents, which as I have said, pleads the state of mind of the apprehending officers as founding the lawfulness of the detention.
106 However, these two contentions were made, without objection from counsel for Mr Fernando, in the respondents' opening written submissions filed on the day before the commencement of the trial. Further, the evidence from Ms Lockhart was led, and Mr Fernando was cross-examined as to the matters referred to above, by senior counsel for the respondents, without objection from Mr Fernando's counsel. Further, senior counsel for the respondents made these contentions in final closing submissions without objection from Mr Fernando's counsel. In my view, therefore, the trial was conducted on the basis that it was open to the respondents to rely upon these two contentions as part of their case (Dare v Pulham (1982) 148 CLR 658).
107 The respondents' first contention was that in respect of the detention of Mr Fernando on 5 October 2003, it was the state of mind of Ms Lockhart as to the status of Mr Fernando that was relevant in determining whether the detention of Mr Fernando on that date was lawful by reason of s 189 of the Migration Act. It was contended that Ms Lockhart was instrumental in effecting the detention of Mr Fernando and that she entertained the requisite state of mind by reason of having learned on 3 October 2003, that Mr Fernando's visa had been cancelled.
108 I do not accept this contention. In Ruddock v Taylor, the High Court had regard to the state of mind of each of the officers who had effected the actual detention of Mr Taylor. McHugh J referred to them as the "apprehending officers". In the case of Goldie v Commonwealth (2002) 117 FCR 566 (Goldie), Mr Cain, the officer, whose state of mind was relied upon, was part of the team of persons (which included ACM officers) that arrested Mr Goldie at his work place. At 573, at [20], it is clear that the Full Court in Goldie regarded Mr Cain as having arrested Mr Goldie, when it said: "Mr Cain's action in arresting [Mr Goldie] was precipitate and not justified by s 189(1) of the Migration Act".
109 The respondents also submitted that on 3 October 2003, Ms Lockhart conveyed the information as to the cancellation of Mr Fernando's visa to Mr Sun by means of the documents that she sent to him late on that afternoon. The respondents contended that I should, on this basis, infer that the persons who detained Mr Fernando at Acacia prison thereby knew or reasonably suspected that Mr Fernando was an unlawful non-citizen. I decline to do so because neither Mr Sun nor the ACM apprehending officers gave evidence. Therefore, there was no evidence as to when, if ever, Mr Sun saw the documents sent by Ms Lockhart; and, if he did see them, what he understood the documents to convey as to Mr Fernando's immigration status. In this regard, I note that whilst Ms Lockhart refers in her evidence-in-chief, to having made a follow-up telephone call, after she sent the facsimile transmission, significantly, she does not say that she spoke to Mr Sun. There was also no evidence that anyone ever advised the two persons who apprehended Mr Fernando as to his immigration status in general; and that his visa had been cancelled, in particular. As mentioned, in Ruddock v Taylor and Goldie the apprehending officers gave evidence.
110 It follows that I find that the respondents have failed to discharge the onus of showing that the two persons, acting on behalf of the first respondent, who effected the detention of Mr Fernando at Acacia Prison on 5 October 2003, knew or reasonably suspected that Mr Fernando was an unlawful non-citizen. It follows that the respondents have failed to prove that the detention of Mr Fernando on 5 October 2003, was lawful.
111 The second contention made by the respondents relied upon the evidence of Mr Fernando that, on 6 October 2003, being the day after he was first detained, he told the supervisor of the Perth Immigration Detention Centre, that he had challenged, by an application made to this Court, the cancellation of his visa. The respondents contended that the inference to be drawn from this evidence is that, from that date onwards, officers of the first respondent knew or reasonably suspected that Mr Fernando was an unlawful non-citizen.
112 There is no dispute that the persons who were in control of the Perth Immigration Detention Centre, were employees of ACM.
113 It is also apparent from Mr Fernando's witness statement and the extract of the cross‑examination of Mr Fernando referred to at [103] above, that Mr Fernando advised the supervisor of the Perth Immigration Detention Centre, that he had challenged the Acting Minister's decision to cancel his visa. In his witness statement, Mr Fernando mistakenly referred to the supervisor as the AIMS supervisor, rather than the ACM supervisor. I infer from that evidence that the unnamed supervisor of the Perth Immigration Detention Centre to whom Mr Fernando spoke, would have concluded that Mr Fernando's visa had been cancelled; and would have, accordingly, known or suspected that Mr Fernando was an unlawful non-citizen, who was being held in detention pending his deportation to the country of his citizenship.
114 Further, because this advice was given to the ACM supervisor by Mr Fernando directly, I find that the supervisor's suspicion that Mr Fernando was an unlawful non-citizen, would have been reasonably held.
115 Mr Fernando challenged the respondents' contention that employees of ACM were officers for the purposes of s 189 the Migration Act. However, the respondents produced the extract from the Australian Government Gazette which evidenced that fact. I, accordingly, reject Mr Fernando's contention on this issue.
116 It follows that I find that from Monday, 6 October 2003, officers for the purpose of s 189 of the Migration Act, who held Mr Fernando in immigration detention, knew or reasonably suspected, that Mr Fernando's visa had been cancelled and that he was on that basis, an unlawful non-citizen who was challenging that status. I reject the contention by Mr Fernando that by reason of that Court challenge, the suspicion held by the officers detaining Mr Fernando was unreasonable. This is because, in my view, it was not incumbent on the officers to investigate the legality of the cancellation of Mr Fernando's visa. Such a requirement would place an undue burden on a detaining officer. Further, it would, generally speaking, have no utility because a detaining officer would reasonably take the view that, until any decision to cancel a non-citizen's visa was set aside by a court, he or she would have to treat the decision as being effective.
117 Further, I find that no circumstance occurred between 6 October 2003 and 18 January 2007, when Mr Fernando was released from immigration detention, which would have altered the state of mind of the officers detaining Mr Fernando, from that held on 6 October 2003. I find, therefore, the officers detaining Mr Fernando during the period 6 October 2003 to 18 January 2007, knew or reasonably suspected, during that period, that Mr Fernando was an unlawful non-citizen.
118 In making these findings of fact, which are crucial to the determination of the lawfulness of the detention of Mr Fernando, I note that in certain circumstances the law imposes special considerations going to the proof of facts, depending on the nature of the matters to be proved. Thus, for example, the law requires strict proof of matters alleged in a bankruptcy petition because of the serious consequences attendant upon a person being adjudged to be bankrupt. Further, the Briginshaw principle applies when serious misconduct is alleged against a person. However, on my reading of the decision of the majority in Ruddock v Taylor, it appears that no such considerations apply in relation to the proof of the matters set out in s 189 of the Migration Act.
119 It, therefore, follows that the respondents have failed to demonstrate that the detention of Mr Fernando was lawful when he was initially detained on 5 October 2003, but the respondents have demonstrated that his detention from 6 October 2003 to 18 January 2007 was lawful.
120 I find, therefore, that Mr Fernando was falsely detained for one day by officers of the first respondent. There is no dispute that the Acting Minister's action in purporting to cancel Mr Fernando's visa was a direct cause of Mr Fernando's unlawful detention.
121 I find that, in preparing and forwarding the minute and issues paper to the Acting Minister on 3 October 2003, the departmental officers were acting pursuant to a departmental stratagem directed to facilitating the making by the Acting Minister of a cancellation decision by 3 October 2003, so that if such a decision was made, Mr Fernando would be arrested immediately on his release from prison on 5 October 2003. I find that the departmental officers' conduct was directed towards having the Acting Minister make a decision at that time, and not at a later time after Mr Fernando's written submissions had been received. I find that the Acting Minister would not have made his decision on that day, and in those circumstances, but for the actions of the departmental officers (Ruddock v Taylor (2003) 58 NSWLR 269 at 276-277).
122 I find that the departmental officers in forwarding of the minute and issues paper to the Acting Minister, knew that the Acting Minister, in making his decision, would not be in a position to consider Mr Fernando's submissions and that they knew, therefore, that if the Acting Minister made a decision to cancel Mr Fernando's visa, that such a decision would be made in excess of power because of the denial of procedural fairness. I find, therefore, that the conduct of the departmental officers was a direct cause of the wrongful arrest and detention of Mr Fernando.
123 I find, therefore, that the first and second respondents are liable in damages to Mr Fernando for the tort of false imprisonment in respect of his unlawful detention on 5 October 2003.
124 At the commencement of the case, senior counsel for the respondents said that, whilst there was a real question as to whether the first respondent would be vicariously liable for the acts of the Acting Minister, the first respondent would in this case, accept that it was vicariously liable for the acts or omissions of the Acting Minister.