Hussein v Secretary of the Department of Immigration and Multicultural and Indigenous Affairs - [2006] FCA 286 - FCA 2006 case summary — Zoe

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Hussein v Secretary of the Department of Immigration and Multicultural and Indigenous Affairs

[2006] FCA 286

Federal Court of Australia|2006-03-22|Before: Graham J

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Source facts

Court

Federal Court of Australia

Decision date

2006-03-22

Before

Graham J

Source

Original judgment source is linked above.

Judgment (27 paragraphs)

[1]

REASONS FOR JUDGMENT 1 The Applicant in these proceedings is a detainee at the Villawood Detention Centre in Sydney. His original Application was filed on 6 October 2005. This was followed by an Amended Application filed 17 January 2006 and a Further Amended Application filed 16 March 2006. 2 Under s 235(3) of the Migration Act 1958 (Cth) ('the Act') it is an offence for an unlawful non-citizen to perform work in Australia whether for reward or otherwise. Section 235(4B) of the Act makes an offence against s 235(3) a strict liability offence and under s 235(5) the relevant penalty is a fine not exceeding $10,000. 3 The gravamen of the Applicant's case is that detainees within the detention centre have performed work either for reward or otherwise, that the Third and Fourth Respondents have aided and abetted the commission of offences by detainees within the centre who as unlawful non-citizens in Australia have performed such work and that the First and Second Respondents have, in effect, failed to do anything about the offences. In relation to the Fifth Respondent the Applicant's case is that the Fifth Respondent has failed to adequately investigate the apparent offences. 4 Section 235(6) of the Act provides for the making of regulations which will have the effect of taking 'work in prescribed circumstances' outside the proscription upon unlawful non -citizens performing work in Australia. 5 By virtue of the Migration Amendment Regulations 2006 (No. 1) (Cth) the proscription contained in s 235(3) no longer applies to work that:- '(a) is performed by an unlawful non-citizen who is detained in a detention centre established under the Act; and

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(see Regulation 5.32A which commenced on 1 March 2006) 6 The effect of the new regulation would seem to be that detainees may lawfully perform work in detention centres whether for reward or otherwise provided that the detainee requests the allocation to him of the work. 7 By a Notice of Motion filed 20 October 2005 the Fifth Respondent sought an order that the Applicant's claim against him be dismissed pursuant to Order 20 rule 2 of the Federal Court Rules on the basis that the Applicant's claim as against the Fifth Respondent disclosed no reasonable cause of action, was frivolous and was an abuse of the process of the Court. 8 In the Application filed 6 October 2005 the Applicant sought an order directed to the Fifth Respondent 'to acknowledge my complaint and conduct an inquiry with respect to my complaint dated 05/September/2005 and to submit a report to the court and to serve the copy of that report to me within three months'. By the Amended Application filed 17 January 2006 the Appellant substituted a new claim for relief against the Fifth Respondent. The new claim sought an order requiring the Fifth Respondent:- 'a). to conduct or cause an investigation to be conducted with respect to my complaint dated 05/September/2005 and the matters raised in the subject matter in this application according to law; and b). to consider and determine according to law whether or not any person should be prosecuted for any offence disclosed by that investigation; c). to submit the investigation report to the court and to serve the copy of that report to me within three months;' By the Further Amended Application filed 16 March 2006 prepared by the Applicant with the assistance of counsel appearing pro bono, the claims for relief against the Fifth Respondent were further amended by substituting the following prayers for relief against the Fifth Respondent: '4. An order pursuant to s.39B of the Judiciary Act and in the nature of mandamus requiring the Fifth Respondent to consider according to law whether the applicant's allegations made on 9 September 2005 should be investigated. 4A. An order extending time pursuant to s 11 of the Administrative Decisions Judicial Review Act 1977 ("the ADJR Act") to allow the applicant to seek review pursuant to s 5 of the ADJR Act as set out in the Further Amended Statement of Claim. 4B. Pursuant to s. 16(1)(b) of the ADJR Act, an order that: (1) The matter to which the decision relates is referred to the Fifth Respondent for further consideration subject to such directions as the Court may consider fit; 4C. Further and in the alternative, pursuant to s. pursuant to s 16(1)(d) (sic) of the ADJR, an order that: (1) The Fifth Respondent is directed to consider according to law whether the applicant's allegations made on 9 September 2005 should be investigated." 4D. Further and in the alternative, pursuant to s. pursuant to 16(1)(d) (sic) of the ADJR an order that: (2) The Fifth Respondent is directed to investigate whether the applicant's allegations made on 9 September 2005 reveal an offence against a Commonwealth law by any of the persons named in the allegations.'

[4]

9 In the Statement of Claim as originally filed the short history of the Applicant's complaints to the Federal Police and the manner in which they had been dealt with were spelt out (see paragraphs 6, 8, 8 (the second number 8), 11, 12 and 13 of the 'PARTICULARS OF RELAVANT (sic) FACTS'). With a re-numbering to eliminate the duplication in respect of 8, these particulars have been repeated in the 'PARTICULARS OF RELEVANT FACTS' in the Further (Amended) Statement of Claim filed 16 March 2006. 10 On 5 September 2005 the Applicant forwarded a facsimile to the Federal Police (Crime Department) in which he expressed his concern about 'a very ill practice' done by GSL (intended as a reference to the Third Respondent) and DNCA (intended as a reference to the Fourth Respondent). In this facsimile the Applicant wrote:- '5. GSL and DNCA have employed lots of detainees to perform many jobs in detention including the kitchen work. For instance food preparation and serving, cleaning, librarian, hair cut, sports assistant, grass cutting, gardening or runner for visit or telephone, distributing of newspaper. These detainees have particular responsibilities of their jobs and they get paid weekly in phone cards or cigarettes.' 11 I might interpose that the Applicant contends that at an earlier point in time he performed work in this way but no longer does so. His mission is to do something about what he perceives to be a serious breach of the law by, most importantly, those who have been involved in or acquiescing in breaches of the law by detainees at the detention centre. 12 The Applicant's facsimile concluded with the words:- 'You are requested to kindly investigate this complaint and to take necessary actions against this criminal ring and stop this illegal work and tax cheating within the detention centre.' 13 In September 2005 Federal Agent Steven Fry was a team member of the Client Liaison team two of the Sydney Office Operations Monitoring Centre of the Australian Federal Police. That monitoring centre was responsible for recording all complaints received by the Australian Federal Police in New South Wales and making an assessment of what action should be taken in relation to each complaint. 14 On or about 6 September 2005 Federal Agent Fry provided Federal Agent Camille Sarah Chicheportiche with a copy of the Applicant's facsimile of 5 September 2005. 15 On 7 September 2005 Federal Agent Chicheportiche sent an email to Mr Hans Verschuur at the Department of Immigration and Multicultural and Indigenous Affairs in Canberra to which a copy of the Applicant's facsimile of 5 September 2005 was attached. Mr Verschuur was an officer of the Department in its Values and Conduct section. 16 The email from Federal Agent Chicheportiche to Mr Verschuur included the following:- 'A 3 page fax was sent to the AFP by Mr Motahar Hussein relating to alleged offences under Section 235(3) of the Migration Act 1958. Mr Hussein alleges that detainees in detention centres throughout Australia are performing work and receiving a reward (in the form of phone cards and cigarettes). Mr HUSSEIN alleges that this is an offence under S 235(3), Migration Act 1958. I understand this sort of allegation has previously been brought to the attention of DIMIA and it was decided that this was not in the nature or spirit of the legislation. Forwarded to Values and Conduct for their information and any action you deem necessary. …' (emphasis added) 17 On 8 September 2005 the Minister for Immigration and Multicultural Affairs issued a press release in the following terms:- 'System Allowing Volunteer Activities in Detention Centres Should Continue VPS 109/2005 Minister for Immigration, Senator Amanda Vanstone, has questioned media and union attacks on the current practice of allowing immigration detainees to engage voluntarily in useful and meaningful activity. "Allowing people to do something productive is a necessary response to the common human need to remain active - it's a good thing", Senator Vanstone said. "It would be a great shame if these ill-conceived attacks put this system at risk." Senator Vanstone said removing the capacity for people to voluntarily contribute to their own wellbeing and the wellbeing of other detainees "can only do harm". "The present system allows people to make a real contribution and receive some token reward for that contribution. It provides both an important outlet for willing participants and gives some recognition to those who choose to get involved." Senator Vanstone said people attacking the right of detainees to contribute should put themselves in the place of those detainees who take pleasure in their capacity to do something worthwhile. "This voluntary activity is not a substitute for paid employment. All basic services are expected to be maintained without the help of voluntary participants. The scheme has been put in place for the benefit of detainees not the contractors. My understanding is that it is quite popular."'

[13]

28 The Commissioner has the general administration and control of the operations of the Australian Federal Police (see s 37(1) of the Australian Federal Police Act 1979 (Cth) ('the AFP Act')). However, the Minister may in limited circumstances give written directions to the Commissioner with respect to the general policy to be pursued in relation to the performance of the functions of the Australian Federal Police (see s 37(2)). 29 The functions of the Australian Federal Police and the powers of members of the Australian Federal Police are to be found in ss 8 and 9 of the AFP Act. In relation to the provision of police services it is also appropriate to note the definition of 'police services' in s 4 of the AFP Act. 30 Whether, in the present case, the Applicant's proceedings against the Fifth Respondent should be summarily dismissed may well depend upon whether or not by entrusting the investigation of the Applicant's allegations to the Department of Immigration and Multicultural and Indigenous Affairs, the Australian Federal Police was abdicating responsibility for the matter in an impermissible way. The Australian Federal Police has indicated that they have an expectation that the Department will respond to the Applicant's allegations by investigating same and reporting back, it being the belief of the Australian Federal Police that the material provided by the Department could then be reviewed on its merit. 31 The Applicant's concern is that prior to referring his allegations to the Department, the Department had publicly declared its support for the performance by detainees of work within the Villawood Detention Centre thereby presenting a closed mind on whether or not offences were relevantly being committed by detainees and those administering the centre. 32 Furthermore, it is arguable that the email of Federal Agent Chicheportiche to Mr Verschuur forwarding a copy of the Applicant's complaint of 5 September 2005 was so expressed as to invite inaction rather than an investigation on the Department's behalf. 33 The parties are in agreement that the Fifth Respondent's motion of 20 October 2005 should now be addressed by reference to the claims made against the Fifth Respondent in the Further Amended Application filed 16 March 2006 and the Further (Amended) Statement of Claim filed 16 March 2006. 34 The Fifth Respondent submits that the Applicant's claims against him are manifestly groundless (see per Barwick CJ in General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 at 129). In that case the Chief Justice proceeded to say at 130:- '… in my opinion great care must be exercised to ensure that under the guise of achieving expeditious finality a plaintiff is not improperly deprived of his opportunity for the trial of his case by his appointed tribunal. On the other hand, I do not think that the exercise of the jurisdiction [to set aside the initiating process] should be reserved for those cases where argument is unnecessary to evoke the futility of the plaintiff's claim. Argument, perhaps even of an extensive kind, may be necessary to demonstrate that the case of the plaintiff is so clearly untenable that it cannot possibly succeed.'

[18]

44 Consistent with the above authorities, it is clear that the action taken by the Fifth Respondent through Federal Agent Chicheportiche to refer the Applicant's complaint to the Values and Conduct section of the Department of Immigration and Multicultural and Indigenous Affairs and to refrain from investigating the Applicant's allegations itself, at least in the first instance, did not constitute a decision to which the ADJR Act applied. Accordingly the claims made by the Applicant against the Fifth Respondent in paragraphs 4A, 4B, 4C and 4D of the Further Amended Application should be dismissed. 45 This leaves for consideration the question of whether or not the Applicant's claim for relief in the nature of mandamus against the Fifth Respondent should also be summarily dismissed. It is not beyond argument that referral of a complaint to a department whose conduct is indirectly called into question in circumstances where it could be said that the Fifth Respondent knew that the department had a closed mind on the issue might constitute an abdication of responsibility by the Fifth Respondent. In such circumstances the Applicant ought not to be deprived of his opportunity to make out a case for relief in the nature of mandamus at the trial of his case by the Court. This, of course is subject to the question of the Applicant's standing to claim relief against the Fifth Respondent. 46 It will be appreciated that the rules relating to standing are designed to ensure that applicants only litigate their own business. For an applicant to have standing demands a connection between the applicant's interests and the relief sought. As a general rule the Court will not recognise busybodies who interfere in things that do not concern them. 47 In Australian Conservation Foundation Incorporated v The Commonwealth of Australia (1980) 146 CLR 493 Gibbs J, as his Honour then was, said at 526:- 'It is quite clear that an ordinary member of the public, who has no interest other than that which any member of the public has in upholding the law, has no standing to sue to prevent the violation of a public right or to enforce the performance of a public duty. There is no difference, in this respect, between the making of a declaration and the grant of an injunction. The assertion of public rights and the prevention of public wrongs by means of those remedies is the responsibility of the Attorney-General, who may proceed either ex officio or on the relation of a private individual. A private citizen who has no special interest is incapable of bringing proceedings for that purpose, unless, of course, he is a permitted by statute to do so.'

Hussein v Secretary of the Department of Immigration and Multicultural and Indigenous Affairs

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Judgment (27 paragraphs)

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