KTW25 v Minister for Immigration and Citizenship [2025] FCA 1391

Details of claim

On the grounds stated in the statement of claim, accompanying affidavit or other document prescribed by the Rules, the Applicant applies for the following relief under section 39B of the Judiciary Act 1903:

1. That the Court hear and determine forthwith the originating motion filed in these proceedings; legal errors to be heard:

a. Incorrect application of law - Public Interest Disclosure Act 2013

2. Injunctions pursuant to section 39B of the Judiciary Act 1903:

1. Directing the first respondent to appoint a new delegate to review the PID submission made to Home Affairs which resulted in record PID 2019/011.

2. Directing the first respondent to treat the applicant as a Public Official within the meaning of the Public Interest Disclosure Act 2013 for the purposes of reassessment of the claim.

3. Directing the respondent to pay the applicant compensation (to be calculated) for evidence of unlawful detention in 2021 by use of false criminal records with respect to reprisal against Public Interest Disclosure.

3. Injunctions pursuant to section 39B of the Judiciary Act 1903:

1. The courts consider issuing anti-reprisal orders with respect to the evidence of computer malfunction which caused the Department to deliberately manipulate migration records and criminal history records.

1. 1st statement of claim (Apr-May 2025): The originating application was accompanied by a statement of claim dated 3 April 2025 (accepted for filing on 21 May 2025) (1st statement of claim). That statement of claim provides:

1. Incorrect application of Public Interest Disclosure (PID) Act 2013

Distilled chain of events:

a. The applicant was in an employee relationship with the University of Adelaide and the services the applicant contributed to the University were under specific Commonwealth contracts relevant to the applicant's services.

b. The applicant was dismissed from the University and the matters were brought to the fair work commission, not one decision of all of the members (up to the president of the commission) made any reference to a definite finding that the applicant did not have an employee relationship with the University of Adelaide.

c. On [REDACTED] July 2019 the decision record from the Fair Work Commission stated: ...in the absence of more complete evidence about the actual research activities undertaken...I do not consider it appropriate to make a definite finding...

d. On 30 July 2019 Home Affairs' decided not to allocate the matters for investigation and incorrectly claimed that even an employee of the University of Adelaide would not be covered by the PID Act.

e. On 12 June 2024 the Department of Defence conceded that "Some activities of the University of Adelaide may fall within the jurisdiction of the PID Act".

2. Reasonable claim from distilled chain of events

a. Had the Department provided correct advice there would have been further consideration to the remedies available under the Public Interest Disclosure Act.

3. Indisputable proof of unlawful detention

a. Deliberate reference to false criminal histories

On 26 May 2021 Home Affairs' refused a visa application while the applicant was being detained; the primary basis to refuse the visa application pertained to '8564 - Must not engage in criminal conduct'. The refusal letter stated..."You were again arrested by South Australia Police on 20 April 2020 for Impersonating a Police officer...". This alleged criminality appeared in other decision records as well as internal communications within the Home Affairs' network.

b. Forming proof that there was no such criminal history

On 19 August 2021 South Australian Police (SAPOL) Freedom of Information Unit provided a copy of a spreadsheet tabulating interactions between SAPOL and the applicant. In this spreadsheet there was no reference to the date 20 April 2020. This was the basis for forming reasonable suspicion that the references to criminal history were false. This reasonable suspicion transitioned to 'knowledge' on 24 November 2022 when SAPOL FOI released 23-1093. Any competent person comparing the visa refusal decisions referencing criminality and SAPOL FOI 23-1093 would be able to conclude that the reference to criminality was false. Equality any competent analyst would be able to conclude that the reference to false criminal records resulted in a period of unlawful detention.

4. Relief Sought

On the grounds set out above, the Applicant seeks injunctions pursuant to section 39B of the Judiciary Act []:

a. Directing the first respondent to appoint a new delegate to review the PID submission made to Home Affairs which resulted in record PID 2019/011.

b. Directing the first respondent to treat the applicant as a Public Official within the meaning of the Public Interest Disclosure Act 2013 for the purposes of reassessment of the claim.

c. Directing the respondent to pay the applicant compensation (to be calculated) for evidence of unlawful detention in 2021 by use of false criminal records with respect to reprisal against Public Interest Disclosure.

d. The courts consider issuing anti-reprisal orders with respect to the evidence of computer malfunction which caused the Department to deliberately manipulate migration records and criminal history records.

1. Applicant's interlocutory application (Jul-Aug 2025): The Applicant has filed an interlocutory application dated 28 July 2025 (and accepted for filing on 12 August 2025) which seeks the following orders:

Interlocutory orders sought

1. Pursuant to s 14 of the Public Interest Disclosure Act 2013, the Court Orders the First Respondent to cause the Department of Home Affairs to pay the applicant $67,808 (~ £33,000) for the abuse of office during May 2025 which resulted in the unreasonable utility 'closer supervision and engagement placement' against the applicant.
2. The Court recommends that the Second Respondent requests the Commander of Detention Operations to issue an apology to the applicant for the unreasonable authorization of 'closer supervision and engagement placement' as a punitive measure.

1. 2nd statement of claim: The interlocutory application was accompanied by a second statement of claim dated 28 July 2025 (2nd statement of claim), which provides:
   1. The order sought for the interlocutory application dated 28 July 2025: Pursuant to s 14 of the Public Interest Disclosure Act 2013, the Court Orders the First Respondent to cause the Department of Home Affairs to pay the applicant $67,808 (~ £33,000) for the abuse of office during May 2025 which resulted in the unreasonable utility of 'closer supervision and engagement placement' (enhanced monitoring) against the applicant.
   2. From at least 05 May 2025 up to 28 May 2025 enhanced monitoring was used against the applicant as a punitive measure in an act of deliberate reprisal.
   3. The authorization of enhanced monitoring was required to be made by the Commander of Detention Operations as per 3.11.2 from Doc ID (PPN) - DM-6320 (FA25/03/01822).
   4. In addition to numerous human rights violations, the authorization was a violation of 1.1.4 which states: "Under no circumstance can a detainee be placed under closer supervision and engagement arrangement as a punitive measure."
   5. The authorization was also a violation of 3.7.6 which states: "Closer supervision and engagement is not punitive and should not be used as an incentive to change detainee behavior. It is to be used to support high risk detainees until they no longer pose a significant risk to themselves, to others in the IDF or to the good order of the IDF."
   6. The authorization from the Commander is an exploitable example of abuse of office.
   7. Compensation is being sought for being the subject of this abuse of office.
2. This 2nd statement of claim has not yet been accepted for filing, because there is a dispute about the legal effectiveness of the Applicant's interlocutory application: see [107] below.
3. Case management orders (Aug 2025): The Respondents in correspondence with the Court foreshadowed applying for summary judgment. At a case management hearing on 7 August 2025, a Judicial Registrar made timetabling orders for the Respondents file any application for summary judgment by a certain date, and for the parties to exchange written submissions and evidence.
4. At that case management hearing, the Applicant agreed not to file any further documents (other than those contemplated by the timetabling orders) until after the Respondents' application for summary judgment was resolved.
5. Respondents' application for summary dismissal (Sept 2025): On 4 September 2025, the Respondents filed an interlocutory application, seeking orders that:

(a) Summary judgment be given in this proceeding against the Applicant in favour of the Respondents, pursuant to s 31A(2) of the Federal Court of Australia Act 1976 (Cth) and/or r 26.01(1)(a), (b) and/or (c) of the Federal Court Rules 2011 (Cth);

(b) Alternatively, that the Applicant's statement of claim dated 3 April 2025 (i.e. the 1st statement of claim) be struck out pursuant to r 16.21(b), (c), (d) and/or (e) of the Rules;

(c) The Applicant pay the Respondents' costs of the proceeding (in the event summary judgment is given), or costs of the application (in the event the statement of claim is struck out).

1. Evidence before the Court: The evidence before the Court for the purposes of the Respondents' interlocutory application consists of the following.
2. Respondents' affidavit: The Respondents have filed an affidavit of Rodger Prince affirmed 4 September 2025 (and accepted for filing on 5 September 2025) (the Prince affidavit).
   • The Prince affidavit annexes 14 emails or email chains between the Applicant and the Department between 5 June 2019 and 13 August 2019.
3. Applicant's affidavits: Relevantly, the Applicant has filed an affidavit affirmed by him on 4 April 2025 (Applicant's 1st affidavit), and an affidavit affirmed by him on 13 August 2025 (the Applicant's 2nd affidavit).
   • The Applicant's 1st affidavit attaches a number of documents, or parts of documents, that seek to explain the allegations in the 1st statement of claim.
   • The Applicant's 2nd affidavit attaches documents, or parts of documents, that seek to explain the allegations in the 2nd statement of claim.
4. In addition, the Applicant's written submissions dated 4 September 2025 also attach documents that he seeks to rely on.
5. Pseudonym order (Sep 2025): The proceeding, as filed, named the Applicant. On 16 September 2025, the Federal Circuit and Family Court (Div 2) assigned the Applicant a pseudonym under s 91X of the Migration Act 1958 (Cth) in proceedings in that Court, on the basis that those proceedings relate to the Applicant in his capacity as an applicant for a protection visa.
6. I determined that this proceeding does not "relate to" the Applicant in that capacity; however, it appeared that there is a common factual background in the two proceedings such that, if the Court were to use the Applicant's name in this proceeding, that would readily enable his identity to be determined in the Federal Circuit and Family Court proceeding and undermine the policy of s 91X. I therefore made pseudonym orders in this proceeding under ss 37AF and 37AG(1)(a) of the Federal Court Act: see SZVGE v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 516 at [3] (Jackson J); see also AB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1227 at [6] (Gray J).
7. Other applications deferred: At various points, the Applicant also sought to file a subpoena, and sought broad suppression orders (on the stated basis that it would be necessary to examine the whole of the relationship between the Department of Defence and the University of Adelaide). I ordered that those documents not be accepted for filing at this stage, as it was not necessary to determine the issues sought to be raised by those applications in order to deal with the Respondents' application for summary judgment.
8. Hearing (Nov 2025): The Respondents' application for summary judgment was heard on 7 November 2025. The Respondents' counsel appeared in person in Melbourne. The Applicant (who is in immigration detention in Western Australia) declined the Court's offer for him to be brought to the Federal Court in Perth to present arguments by video-link. The Applicant also declined to use the meeting room arranged by the immigration detention centre, which would have allowed him to participate in the hearing by video-link. Instead, the Applicant chose to attend by telephone (which I permitted under ss 47B and 47C of the Federal Court Act).
9. After the hearing, the Applicant sent the Court two emails, which sought to make further submissions. Chambers sent an email to the parties, stating that judgment was reserved and that further materials would not be accepted without the leave of the Court (see Galuak v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] FCAFC 146; (2024) 306 FCR 271 at [83] (the Court), and the cases cited). However, I read those emails, and am satisfied that they do not add to the relevant materials before the Court.

1. The applicable legislation in this proceeding is the law governing granting summary judgment, and striking out pleadings; and the PID Act. In considering summary dismissal and strike out, it will be necessary to explain the position when (as here) an applicant is legally unrepresented.

C.1 Summary judgment and striking out pleadings

1. Federal Court Act s 31A (no reasonable prospect of success): Starting with summary judgment, the Court may give judgment to a party defending a proceeding against another party in relation to the whole or part of the proceeding if "the Court is satisfied that the other party has no reasonable prospect of successfully prosecuting the proceeding or that part of the proceeding" (Federal Court Act, s 31A(2)(b)).
2. For these purposes, a proceeding or part of a proceeding need not be hopeless, or bound to fail, for it to have no reasonable prospect of success (s 31A(3)).
3. Rules r 26.01: By r 26.01(1) of the Rules, a party may apply to the Court for an order that judgment be given against another party because (relevantly):

(a) the applicant has no reasonable prospect of successfully prosecuting the proceeding or part of the proceeding; or

(b) the proceeding is frivolous or vexatious; or

(c) no reasonable cause of action is disclosed;

1. Summary judgment - general principles: The Respondents rely on the following observations about s 31A of the Federal Court Act made by French CJ and Gummow J in Spencer v Commonwealth [2010] HCA 28; (2010) 241 CLR 118 at [22]:

[Section 31A] authorises summary disposition of proceedings on a variety of bases under its general rubric. It will apply to the case in which the pleadings disclose no reasonable cause of action and their deficiency is incurable. It will include the case in which there is unanswerable or unanswered evidence of a fact fatal to the pleaded case and any case which might be propounded by permissible amendment. It will include the class of case in the longstanding category of cases which are "frivolous or vexatious or an abuse of process". The application of s 31A is not, in terms, limited to those categories.

1. The principles governing s 31A were summarised as follows in Sayed v Salvation Army Housing [2023] FCA 526 at [45] (O'Callaghan J) (which was adopted in Scordo v Commonwealth Bank of Australia [2024] FCA 359 at [45] (Button J)):
   • The essential requirement for an order under s 31A or r 26.01 is that the Court be satisfied that the applicant has no reasonable prospect of successfully prosecuting the claim. This is a lower standard than the previous "hopeless" or "bound to fail" standard.
   • Summary judgment is available when well-established propositions of law deny the prospect of success.
   • On the other hand, summary dismissal is a serious step taken only with great care and if the Court is confident that there is no reasonable prospect of success.
2. The exercise of power under s 31A(2) should be used with caution, particularly where complex questions of fact or law are involved: Upaid Systems Ltd v Telstra Corporation Limited [2016] FCAFC 158 at [48] (the Court). At the same time, if the version of the facts asserted by the party resisting the motion is either so improbable, or fanciful, or trifling, or implausible, or tenuous then summary judgment must be granted: Fair Work Ombudsman v Austrend International Pty Ltd [2018] FCA 171; (2018) 273 IR 439 at [20] (Gilmour J); B&K Holdings (Qld) Pty Ltd v Garmin Australasia Pty Ltd [2019] FCA 64; (2019) 134 ACSR 404 at [17] (Derrington J); Australian Communications and Media Authority v V Marketing Pty Ltd (in liq) [2020] FCA 1326 at [49] (Collier J); PlayUp Limited v Mintas [2022] FCA 892 at [65] (Markovic J).
3. Scordo establishes the following propositions about the other tests for summary dismissal in r 26.01(1)(b) and (c) of the Rules:
   • A proceeding is "frivolous" if the cause of action lacks substance or is groundless or fanciful, or where a party is trifling with the court or wasting its time. A proceeding is "vexatious" if it is without foundation, cannot succeed or is brought for an ulterior and collateral purpose: Scordo at [48], and the cases cited.
   • A proceeding will disclose "no reasonable cause of action" if it is so obviously untenable that it cannot succeed: Scordo at [49]; or if the originating application simply makes "bare demands" without articulating the legal bases for the claims: Sayed at [46](a).
4. In Scordo, Button J made two general points worth emphasising. First, the Court's power to give judgment under s 31A does not involve "mere pleading points" but is concerned with substance: Scordo at [42]. Second, the Court's resources are finite, and s 31A confers power on the Court to avoid the waste of those resources. While granting summary judgment is a serious matter as it brings to an end a litigant's ability to pursue claims to trial, the Court should not shy away from exercising its powers in an appropriate case: Scordo at [53].
5. Rules r 16.21 (strike out): Rule 16.21 of the Rules provides that a party may apply to the Court for an order that all or part of the pleading be struck out on the ground that the pleading:

(b) contains frivolous or vexatious material; or

(c) is evasive or ambiguous; or

(d) is likely to cause prejudice, embarrassment or delay in the proceeding; or

(e) fails to disclose a reasonable cause of action or defence or other case appropriate to the nature of the pleading;

1. The Respondents rely on the following principles from the judgment of Wigney J (with whom Jackson J agreed) in KTC v David [2022] FCAFC 60:
   • A pleading is "likely to cause prejudice or embarrassment" (within r 16.21(1)(d)) if it is susceptible to various meanings, contains inconsistent allegations, includes various alternatives which are confusingly intermixed, contains irrelevant allegations or includes defects which result in it being unintelligible, ambiguous, vague or too general. Such a pleading could equally be characterised as "evasive or ambiguous" within r 16.21(1)(c): KTC v David at [120].
   • A "reasonable cause of action" (within r 16.21(1)(e)) is a cause of action that has some chance of success having regard to the allegations pleaded: KTC v David at [123].
   • If substantial parts of a pleading are struck out, the Court may strike out the entire pleading on the basis that the "residue would be confusing": KTC v David at [124].
2. Position with self-represented litigants: A relevant factor in applying the laws set out above is that the Applicant is self-represented. The Court has an overriding duty to ensure a fair trial for all parties, which means the Court will take appropriate steps to ensure that an unrepresented litigant has sufficient information about the practice and procedure of the Court, so far as is reasonably practicable for the purpose of ensuring a fair trial: see generally SZRUR v Minister for Immigration and Border Protection [2013] FCAFC 146; (2013) 216 FCR 445 at [37] (Robertson J, with Allsop CJ and Mortimer J agreeing), and NWQR v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 30 at [27] (the Court). However, although the Court may be lenient in the standard of compliance which it expects from a litigant in person, that leniency does not go so far as to confer an advantage on the person who acts on their own behalf: Kumar v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCAFC 79 at [21] (the Court); see also Chetcuti v Minister for Immigration and Border Protection [2019] FCAFC 112; (2019) 270 FCR 335 at [106] (Murphy and Rangiah JJ).
3. In Azad v Avant Insurance Limited (No 2) [2025] FCA 853 at [8], Colvin J explained the position with self-represented litigants in the context of a summary dismissal application as follows:

When parties conduct their own case, they are not expected to be able to plead their case with the same precision as a skilled lawyer. Some leeway, consistent with the fair conduct of the proceedings, will be allowed to a litigant in person. Nevertheless, the responsibility of an applicant to plead a case and for a respondent to state the nature of the defence must still be met before the case can proceed. The fair conduct of adversarial proceedings depends upon the parties discharging their responsibility in that regard. If an applicant is unable or unwilling to do so, the case cannot proceed.

1. See also Bilal v EML NSW Limited [2025] FCA 1190 at [8]- [9] (Shariff J).

1. Many of the allegations made in the Applicant's 1st and 2nd statements of claim concern the application of the PID Act. As will become apparent, two key issues in this proceeding are:
   • Whether the referral made by the Applicant in June 2019 to the Department could reasonably be considered to be a "public interest disclosure" within the PID Act (in particular, an "internal disclosure");
   • Whether alleged action taken by the Second Respondent in May 2025 in relation to the Applicant in immigration detention could in law amount to a "reprisal" within the PID Act. (A similar issue arises with the Department's refusal to grant the Applicant a bridging visa in May 2021.)

C.2(a) Provisions relating to public interest disclosures (at July 2019)

1. The first set of relevant provisions concern the definition of "public interest disclosures" and the legal requirements for dealing with disclosures of information. These provisions will be considered at the time of the Department's decision in July 2019.
2. "Public interest disclosure" (s 26): By s 26(1) of the PID Act, a disclosure of information was a "public interest disclosure" if:

(a) the disclosure is made by a person (the discloser) who is, or has been, a public official; and

(b) the recipient of the information is a person of the kind referred to in column 2 of an item of the following table; and

(c) all the further requirements set out in column 3 of that item are met: ...

1. "Public official" (ss 69-70): The first element in the definition of "public interest disclosure" is that the disclosure is made by a public official (s 26(1)(a)).
2. A "public official" was defined as an individual mentioned in column 1 of an item in the table in s 69(1). This table included Commonwealth bodies and agencies such as a Secretary of a Department, and an Australian Public Service (APS) employee in a Department or Executive Agency. Relevantly, the table in s 69(1) included:

(a) is an officer or employee of a contracted service provider for a Commonwealth contract; and

(b) provides services for the purposes (whether direct or indirect) of the Commonwealth contract.

1. However, an individual who is a "public official" under the above definition did not engage in conduct in connection with his or her position as such a public official unless the conduct was in connection with entering into, or giving effect to, the Commonwealth contract (s 30(1)). By s 30(3), a "Commonwealth contract" was a contract to which the Commonwealth or a prescribed body is party, and:

(b) under which goods or services are to be, or were to be, provided:

(i) to the Commonwealth or a prescribed authority; or

(ii) for or on behalf of the Commonwealth or a prescribed authority, and in connection with the performance of its functions or the exercise of its powers.

1. In addition, there was provision in s 70 for an authorised officer to determine that a person who is not a public official is to be treated as a public official. This required, among other things, that the official believe, on reasonable grounds, that an individual who was not a public official had information that concerned disclosable conduct (s 70(1)(a)).
2. Recipient for "internal disclosure" (s 26(1) item 1): The second element in the definition of "public interest disclosure" was that the recipient is a person of a kind identified in column 2 of the table in s 26(1) (s 26(1)(b)). The type of public interest disclosure turned on the identity of the recipient: there was an "internal disclosure" (item 1 of the table), "external disclosure" (item 2), "emergency disclosure" (item 3), and "legal practitioner disclosure" (item 4).
3. Relevantly, the recipient identified in column 2 for "internal disclosure" (item 1 of the table) was "[a]n authorised internal recipient, or a supervisor of the discloser". Generally, an authorised internal recipient was an authorised officer of the agency to which the conduct related (see s 34, item 1).
4. Further requirements for internal disclosure: The third element in the definition of "public interest disclosure" was that all the further requirements set out in column 3 of that item in the s 26(1) table were met. In July 2019, column 3 for item 1 set out the following further requirements for an internal disclosure:

The information tends to show, or the discloser believes on reasonable grounds that the information tends to show, one or more instances of disclosable conduct.

1. "Disclosable conduct" (s 29): By s 29(1)(c), "disclosable conduct" was conduct of a kind mentioned in the table in s 29(1) that is engaged in by (relevantly) "a contracted service provider for a Commonwealth contract, in connection with entering into, or giving effect to, that contract". That conduct in the s 29(1) table included:

(a) fabrication, falsification, plagiarism, or deception, in relation to:

(i) proposing scientific research; or

(ii) carrying out scientific research; or

(iii) reporting the results of scientific research; or

(b) misconduct relating to scientific analysis, scientific evaluation or the giving of scientific advice.

1. Investigating public interest disclosures (Pt 3): Part 3 of the PID Act provided for the investigation of public interest disclosures. Relevantly, Div 1 dealt with the allocation of the handling of a disclosure, while Div 2 dealt with the investigation of a disclosure allocated to an agency.
2. Allocation of disclosure (s 43): By s 43(1), if a person disclosed information to an authorised officer of an agency (or to the officer's supervisor who then gave it to the officer), the authorised officer "must allocate the handling of the disclosure to one or more agencies".
3. However, by s 43(2), s 43(1) did not apply if the authorised officer:

[was] satisfied, on reasonable grounds, that there is no reasonable basis on which the disclosure could be considered to be an internal disclosure. (emphasis added)

1. As explained below, the emphasised wording in s 43(2) means that the Court does not decide for itself whether the Applicant's disclosure met the requirements of a "public interest disclosure", but determines only whether there was a reasonable basis for the Department's decision that the disclosure did not meet those requirements: see further [76]-[77] below.

C.2(b) Provisions relating to reprisals (at May 2025)

1. The second relevant set of provisions in the PID Act are those relating to reprisals. It is convenient to consider these provisions at the date of the enhanced monitoring in May 2025.
2. Protection of disclosers and witnesses (Pt 2): Part 2 of the PID Act provides for protection of disclosers and witnesses. Relevantly, the Court may make orders for civil remedies if a reprisal is taken against a person because of a public interest disclosure (including a proposed or suspected public interest disclosure) (see s 9).
3. Reprisals (s 13(1)): By s 13(1), a person (the "first person") takes a reprisal against another person (the "second person") if:

(a) the first person engages in conduct that:

(i) results in detriment to the second person; or

(ii) consists of, or results in, a threat to cause detriment to the second person; and

(b) when the conduct is engaged in, the first person believes or suspects that the second person, or any other person:

(i) has made a public interest disclosure; or

(ii) may have made a public interest disclosure; or

(iii) proposes to make a public interest disclosure; or

(iv) could make a public interest disclosure; and

(c) the belief or suspicion is the reason, or part of the reason, for engaging in the conduct.

1. However, a person does not take a reprisal against another person to the extent that the person takes administrative action that is reasonable to protect the other person from detriment (s 13(3)).
2. "Detriment" (s 13(2)): By s 13(2), detriment "includes (without limitation) any of the following":

(a) dismissal of an employee;

(b) injury of an employee in his or her employment;

(c) alteration of an employee's position to his or her disadvantage;

(d) discrimination between an employee and other employees of the same employer;

(e) harassment or intimidation of a person;

(f) harm or injury to a person, including psychological harm;

(g) damage to a person's property;

(h) damage to a person's reputation;

(i) damage to a person's business or financial position;

(j) any other damage to a person.

1. Remedies for reprisals (ss 14-15): Part 2 of the PID Act sets out remedies that can be granted if a person takes a "reprisal" against another person within s 13. Relevantly, the Court:
   • may make an order requiring the respondent to compensate the applicant for loss, damage or injury as a result of the reprisal (s 14(1)(a)); and
   • may make an order requiring the respondent to apologise to the applicant for taking the reprisal (s 15(1)(b)).

1. This section analyses the Applicant's claims, considering in turn the 1st and 2nd statements of claim. The analysis of each identifies the essential claims; then sets out the relevant facts (to the extent they can be determined on the materials before the Court); then analyses whether the Applicant has any reasonable prospect of prosecuting those essential claims.

D.1 First statement of claim (whether public interest disclosure; unlawful detention)

1. Essential claims (1st statement of claim): The 1st statement of claim (set out in [6] above) contains two broad claims.
2. Decision not to investigate disclosure under PID Act (July 2019): The first broad claim is that the Department erred when it decided on 30 July 2019 that the Applicant's disclosure (which alleged misconduct by the University of Adelaide) was not covered by the PID Act (see 1st statement of claim, items 1-2).
   • The Applicant contends in this Court that he was an "employee" of the University of Adelaide, and that he contributed services to the University under specific Commonwealth contracts (1st statement of claim, item 1(a)). Therefore, he argues, his disclosure came within the PID Act (see item 1(d)).
3. Reference to "false criminal history" in refusing bridging visa (May 2021): The second broad claim is that the Department's reference to "false criminal histories" when refusing an application for a bridging visa on 26 May 2021 caused the Applicant to be unlawfully detained in 2021 (see 1st statement of claim, item 3).
   • The Department's decision stated that the Applicant had been arrested in April 2020 for impersonating a South Australian (SA) police officer (item 3(a)). The Applicant contends that records obtained from South Australian Police (SAPOL) under freedom of information legislation shows no record of him being arrested for that or any other offence (item 3(b)).
   • At the hearing, the Applicant clarified that he contends further that these adverse bridging visa decisions were reprisals for his disclosure in June 2019 (cf 1st statement of claim item 4(c) and (d)).
4. Key events (1st statement of claim): The materials before the Court establish the following key events.
5. Applicant begins a Masters program (Mar 2017): The Applicant is an American citizen. He began a Master of Philosophy at the Medical School at the University of Adelaide in March 2017.
6. University terminates candidature (Jul 2018): On 30 July 2018, the Pro Vice-Chancellor (Research Operations) at the University gave notice that it was terminating the Applicant's Master of Philosophy candidature at the Medical School.
7. Applicant's internal appeal dismissed (Aug-Sep 2018): On 27 August 2018, the Applicant requested an internal appeal against this termination decision. That appeal was dismissed on 25 September 2018.
8. An internal email from the University helpdesk dated 26 September 2018 states that the Applicant's role of "Postgraduate Research Student" would end on 10 October 2018.
9. University dismisses Applicant's misconduct complaint (Oct-Nov 2018): On 4 October 2018, the Applicant made allegations relating to research integrity in the institute relevant to his candidature. On 15 November 2018, the Provost and Deputy Vice-Chancellor (Research) of the University concluded, after conducting an initial review, that there was no reasonable belief that a possible breach of the applicable research code of conduct had occurred, and that the matter did not warrant a formal preliminary assessment.
10. Applicant's licence to attend campus revoked (Dec 2018): On 20 December 2018, the University's General Counsel advised the Applicant that the University was revoking the Applicant's right to attend on campus, because of concerns that his presence on campus posed a risk to the health and wellbeing of staff, students and others on campus.
11. Applicant sends disclosure to Department (Jun 2019): On 5 June 2019, the Applicant sent an email headed "PID and Whistleblower Protocol - Request confirmation that material has been received" to a number of recipients, including in the Department. This email included the following "Lay summary of my situation":

1. I was assigned to a research project that was engaging in research misconduct by fabricating results of a medical treatment model. I was expected to lie about results and when I questioned the work I was assaulted, bullied, threatened and dismissed.

There were attempts to bring this model to human trials. As such this matter is classified as a Public Interest Disclosure.

2. I am the inventor of medical device and several process patents that are of great value to the medical and materials science community.

3. My knowledge of this information and attempt to claim my invention has led me to be bullied and threatened. I was even accused of being a terrorist and counter terrorism police infiltrated my home with no notification.

I have omitted data from Australian federal police, South Australian Police Department, Department of Home Affairs, and Department of Defense.

1. The Applicant sent a further eight emails to the Department between 5 and 7 June 2019, attaching various documents and audio files. Those emails and attachments are almost 450 pages in total.
2. FWC refuses extension of time to bring unfair dismissal application (Jul 2019): The material before me indicates that the Applicant brought an unfair dismissal claim in the Fair Work Commission under the Fair Work Act 2009 (Cth). It appears from the University's response to that application (contained in the Prince affidavit) that the University contended that the Applicant was a student, not an employee. The 1st statement of claim refers to a decision of the Commission (item 1(c)). That document is available on public databases, and I have redacted the date in [6] above to preserve the Applicant's anonymity.
3. The Commission's decision was to refuse an extension of time to permit the Applicant to bring an unlawful termination claim. The Commission stated that, on the evidence before it, the "overwhelming body of evidence" was consistent with the relationship between the Applicant and the University being that of a student studying with the University under a scholarship arrangement and not that of an employee being employed. However, the Commission did not make a definitive finding on that aspect.
4. Department decides that disclosure not covered by PID Act (Jul 2019): On 30 July 2019, an officer of the Department was satisfied that there was no reasonable basis on which the Applicant's disclosure could be considered an internal disclosure. The reasons were as follows:
   1. I have assessed that your disclosure is not a disclosure under the PID Act, as you are not, and have not been, a public official. In order to make a public interest disclosure, a person must be or have been a public official. Under section 69 of the PID Act, a public official is defined to include employees, members and appointees of various Commonwealth entities and bodies. However, the definition does not apply to any State authorities or bodies. As such, neither an employee or student of the University of Adelaide would be a public official.
   2. Under s 70 of the PID Act, there is a discretion for an authorised officer to deem an individual to be a public official when they fall outside the definition in section 69 of the PID Act. However, this is only possible where the authorised officer believes on reasonable grounds that the individual has information that concerns disclosable conduct. In this regard, I am not satisfied your disclosure is disclosable conduct under the PID Act.
   3. Specifically, section 29 of the PID Act limits disclosable conduct to conduct engaged in by an agency, a public official or a contracted service provider for the Commonwealth. The PID Act does not apply to state authorities or bodies. Your allegation relates to conduct by members and staff of the University of Adelaide. The University of Adelaide is a body corporate established by State law. As such, conduct engaged in by the University of Adelaide does not fall within the jurisdiction of the PID Act.
5. Application for bridging visa refused (May 2021): The 1st statement of claim contends that the Department refused an application for a bridging visa on 26 May 2021 (item 3(a)). The Applicant's first affidavit contains a single page from what appears to be a delegate's decision.
   • Under the heading "8564 - Must not engage in criminal conduct", there is a statement that information provided to the Department by SA police indicated that the Applicant was arrested on 27 November 2020 due to outstanding traffic infringements. That paragraph continues "You were again arrested by South Australian Police on 20 April 2020 for Impersonating a Police officer", but the remainder of the sentence has been redacted. The remainder of the decision is not provided.
   • This page also states that the decision-maker was not satisfied that the Applicant would comply with condition 8401 Must Report As Directed.
6. Defence rejects claim under CDDA scheme (Jun 2024): The 1st statement of claim refers to a decision by the Department of Defence dated 12 June 2024 (item 1(e)). That decision and an earlier decision dated 10 April 2024 (which are before the Court) both concern an application by the Applicant to Defence in March 2024 under the Scheme for Compensation for Detriment caused by Defective Administration (CDDA).

(a) The 10 April 2024 letter states that the Applicant sought to make a disclosure under the PID Act to Defence on 4 May 2021, and that a delegate in that Department found on 8 June 2021 that this disclosure was not an "internal disclosure" made by a "public official". The letter states that the only connection with Defence appeared to be an incident in which the Applicant attended the 2018 Land Forces Symposium, and attempted to pass himself off as a Defence SA official, and was removed from the venue. The Applicant had claimed that he had been working on a project involving the National Health Medical Research Council and the Defence Science and Technology Group. The letter stated that it was not defective administration for a Defence delegate not to accept the Applicant's disclosure under the PID Act, in circumstances where the Applicant did not meet the statutory criteria under the PID Act.

(b) The 12 June 2024 letter was an internal review of the above decision. The letter concludes that the 10 April 2024 letter was correct in concluding that the decision by Defence to decline to investigate the Applicant's disclosure was reasonable in the circumstances. The letter does state:

Some activities of the University of Adelaide may fall within the jurisdiction of the PID Act, for example, activities that are connected with a "Commonwealth contract" as defined for the purposes of the PID Act, and that otherwise meet the eligibility criteria in the PID Act.

However, the letter also concluded that it was more likely than not that the Applicant was not an employee of the University, but was a student. As a result, the letter concluded that the Applicant was not a "public official" as defined.

1. Prospects of Applicant's claims under the PID Act: Turning to prospects of success, the Applicant's claims that the Department wrongly refused to allocate and investigate his disclosure under the PID Act face insuperable difficulties.
2. Relevant legal questions: First, the Applicant misunderstands the legal questions that are raised. His application assumes that the Court would decide for itself whether his disclosure was or was not a "public interest disclosure" as defined. However, the statutory definitions in s 26 and related provisions of the PID Act only operate as an aid to the construction of the statute, and do not have independent substantive effect: see, for example, Moreton Bay Regional Council v Mekpine Pty Ltd [2016] HCA 7; (2016) 256 CLR 437 at [61]- [62] (French CJ, Kiefel, Bell and Nettle JJ), citing Gibb v Commissioner of Taxation [1966] HCA 74; (1966) 118 CLR 628 at 635 (Barwick CJ, McTiernan and Taylor JJ). It is therefore necessary to identify an operative provision.
3. Here, the operative provision is s 43(2) of the PID Act, and the relevant issue is the lawfulness of the Department's decision not to allocate the Applicant's disclosure. As noted, under s 43(2) the Department could refuse to allocate a disclosure for investigation under the PID Act if the decision-maker was "satisfied, on reasonable grounds, that there is no reasonable basis on which the disclosure could be considered to be an internal disclosure".
   • The fact that s 43(2) operates by reference to the decision-maker's satisfaction is a clear indicator that the issue is the lawfulness of that satisfaction, and the Court does not determine for itself whether the disclosure was an "internal disclosure": see Timbarra Protection Coalition Inc v Ross Mining NL [1999] NSWCA 8; (1999) 46 NSWLR 55 at [42] (Spigelman CJ); Anvil Hill Project Watch Association Inc v Minister for the Environment and Water Resources [2008] FCAFC 3; (2008) 166 FCR 54 at [21] (the Court).
   • Further, the legal limit in s 43(2) is whether the decision-maker's satisfaction was legally reasonable, as there must be "reasonable grounds" for being satisfied that there was no reasonable basis for considering the disclosure to be an internal disclosure. This requires that the decision-maker be subjectively satisfied, and that the facts and circumstances known to the decision-maker constituted objectively reasonable grounds for that satisfaction: Prior v Mole [2017] HCA 10; (2017) 261 CLR 265 at [4] (Kiefel and Bell JJ), [94] (Gordon J); see also [24] (Gageler J, dissenting in the result). This reference to circumstances "known to the decision-maker" follows from the general principle that the legal reasonableness of an administrative decision is assessed at the time of the decision, on the circumstances known to the decision-maker: see DVO16 v Minister for Immigration and Border Protection [2021] HCA 12; (2021) 273 CLR 177 at [21] (Kiefel CJ, Gageler, Gordon and Steward JJ); Minister for Home Affairs v DUA16 [2020] HCA 46; (2020) 271 CLR 550 at [26] (Kiefel CJ, Bell, Keane, Gordon and Edelman JJ). Even if the reference in s 43(2) to "no reasonable basis" might introduce notions of whether it was arguable that a disclosure was an internal disclosure, those matters are still assessed on the materials before the decision-maker.
   • In other words, the Court's function in assessing the lawfulness of the Department's July 2019 decision is limited to considering whether, on the materials before the Department at that time, it was reasonably open for the authorised officer to conclude that the Applicant's disclosure did not raise an arguable internal disclosure. For that reason, there is no scope for the Court now to order that the Applicant be treated as a "public official" under s 70 of the PID Act: cf originating application, order 2(b).
4. Applicant's arguments do not undermine reasonableness of Department's decision: Second, and consequent on the difficulty identified above, the Applicant's arguments in this Court do not address whether the Department's decision was reasonably open to it, but rather contend that the decision is incorrect, referring to materials and making arguments not before the decision-maker. Even if those arguments were accepted, it would not establish any legal error in the Department's decision not to allocate the Applicant's disclosure for investigation.
5. In this Court, the Applicant contends, correctly, that a "public official" includes (relevantly) an employee of a contracted service provider for a Commonwealth contract, who provides services for the purposes (whether direct or indirect) of the Commonwealth contract: see [40] above. The Applicant then argues that the true position is that (i) he was an "employee" of the University; (ii) the University was a "contracted service provider" for a Commonwealth contract (relevantly, with the Defence Science and Technology Group in the Department of Defence); and (iii) he provided services for the purposes of that contract.
6. The fundamental difficulty with this argument is that points (ii) and (iii) above were not put to the Department at all in the Applicant's nine emails and multiple attachments sent between 5 and 7 June 2019. That argument does not appear in the "lay summary" quoted in [68] above. And, even after examining all 450 pages of materials sent to the Department during that period, I am unable to find anywhere the Applicant articulating (or providing documentation to support) an argument that he was an employee of a "contracted service provider", and therefore a "public official" on that basis. It seems that this argument was later articulated in the CDDA claim made to Defence in March 2024: see [74](a) above. But the argument was not made to the Department in June 2019.
7. For that reason, it was plainly open to the Department to conclude in July 2019, on the basis of the materials provided to it, that there was no reasonable basis on which the Applicant's disclosure could be considered an internal disclosure. Indeed, on the materials before the Department, no other decision was possible. It was correct as a general statement for the Department to say that the PID Act does not apply to a body established by state law, such as the University. It is true (as the Applicant points out) that there are some exceptions to that general statement, particularly when a state body is a contracted service provider under a Commonwealth contract. However, in the absence of any argument or information provided by the Applicant that the University was acting in a capacity of a "contracted service provider" in relation to the matters being disclosed, there was no requirement for the Department to consider that possibility: see further [85] below.
8. For the same reason, there is no error in the Department's decision not to treat the Applicant as a "public official" under s 70 of the PID Act: see [72] above (paras 8-9). In the absence of any argument or information indicating that disclosure related to the University in a capacity as a "contracted service provider" for a Commonwealth contract, there was no basis for the Department to consider that the Applicant's disclosure related to "disclosable conduct" (see PID Act s 29(1)(c)).
9. I note for completeness that the Applicant has at times (particularly in August 2019, after receiving the Department's decision) made adverse representations to the Department about advice he had received from persons at the University in relation to his immigration status. That is a separate topic altogether, and does not go any way towards establishing that the disclosure in June 2019 could reasonably be seen to be a "public disclosure".
10. Response to Applicant's arguments: At the hearing, the Applicant argued that the Department's response stated in absolute terms that "neither an employee or student of the University of Adelaide would be a public official" (see [72] above (para 7)), which prevented the Applicant from providing further information that could have shown that the University was a "contracted service provider" and that the Applicant was providing services for the purposes of a Commonwealth contract. The Applicant argued that he had provided information and arguments that (i) he was an "employee" of the University; and (ii) there had been disclosable conduct, in the form of falsified scientific data. This was sufficient, he argued, that the Department should have undertaken further inquiries about his disclosure.
11. The Applicant's argument turns on whether the Department was under a legal obligation to obtain further information from the Applicant before making a decision under s 43 of the PID Act. The PID Act does not expressly require recipients of disclosures to enter into a discussion with those making disclosures, or to gather more information from them. Rather, the PID Act requires agencies to assess the disclosure that is made. Nor can this obligation be implied: as a general matter, the law imposes an obligation on administrative decision-makers to conduct further enquiries in only very limited circumstances; most commonly, a failure to make an obvious inquiry about a critical fact, the existence of which is easily ascertained: Minister for Immigration and Citizenship v SZIAI [2009] HCA 39; (2009) 83 ALJR 1123 at [25] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ). What is "obvious" would be assessed on the circumstances known to the decision-maker at the time of the decision, and not with the benefit of hindsight: see Smith v Minister for Home Affairs [2018] FCA 1594 at [59] (Robertson J). Here, it was not obvious on the material provided in June 2019 that the Applicant was contending that the University was a "contracted service provider", and that the disclosable conduct related to a Commonwealth contract.
12. Significant unexplained delay: A separate difficulty for the Applicant in prosecuting his case is that he is seeking to challenge a decision that was made more than six years ago. Even if his arguments had any merit (contrary to my view above), this length of unexplained delay would be strong grounds for refusing to grant relief in the exercise of discretion: see Makarov v Minister for Home Affairs [2021] FCAFC 129; (2021) 286 FCR 412 at [40] (the Court); Minister for Immigration and Citizenship v SZIQB [2008] FCAFC 20 at [19], [24] (the Court). The Applicant has offered no explanation for not bringing this application more promptly.
13. Other issues: I note for completeness that there are other difficulties with the Applicant's arguments in the 1st statement of claim.
    • In particular, an essential step in his argument is that he was an "employee" of the University. That argument was rejected by Defence in 2024, and the Commission found that the overwhelming body of evidence before it suggested that the Applicant was not an employee: see [71] and [74](b) above.
    • Further, it should not be assumed that any collaborative research relationship between the University and the Defence Science and Technology Group would involve a "Commonwealth contract", as that term is defined in s 30(3) of the PID Act.
14. However, these matters were not relied on by the Department in July 2019, so it is not necessary to decide whether these arguments could have provided "reasonable grounds" for the Department's decision under s 43(2) of the PID Act.
15. Prospects of claims relating to adverse bridging visa decision: The Applicant's second broad claim in the 1st statement of claim relates to a decision to refuse to grant him a bridging visa in May 2021. He contends that this adverse decision caused him to be unlawfully detained, and was a reprisal for his disclosure in June 2019.
16. No unlawful detention: Any claim that the Applicant was unlawfully detained in 2021 lacks any prospects whatsoever. The authority to detain the Applicant derives from s 189(1) of the Migration Act, which provides that an officer must detain any person in the migration zone who the officer reasonably suspects is an unlawful non-citizen. An "unlawful non-citizen" is a non-citizen who does not hold a visa that is in effect (see Migration Act, ss 13 and 14).
17. Even if it be assumed in the Applicant's favour that (i) the May 2021 decision referred to factually incorrect information and (ii) consequently, the decision to refuse to grant a bridging visa was invalid and/or (iii) the adverse decision amounted to a "reprisal" under the PID Act, it would not follow that the Applicant was unlawfully detained at that time. In that situation, the Applicant would not in fact hold a visa, and would therefore still be an "unlawful non-citizen" who was liable to be detained under s 189(1). The consequence of any invalidity of the decision to refuse a bridging visa would be, at most, that the duty to make a decision remained unperformed, and the Department could be required to make another decision. (Again, it is most unlikely that this remedy would be granted in practice, given that the decision was made more than four years ago, and the Applicant has made multiple applications for bridging visas since then.) Similarly, any conduct amounting to a "reprisal" might attract remedies under the PID Act, but would not render his detention unlawful.
18. Connection with reprisals? At the hearing, the Applicant argued that the Department's reliance on the false police information (and false medical information) in refusing his bridging visa in May 2021 was actually a reprisal, within the meaning of the PID Act, for the Applicant's disclosure in 2019. Although this argument does not appear in the summary of the claim in item 3 to the 1st statement of claim, there are references to reprisals in the relief sought in item 4(c) and (d).
19. The requirements of a "reprisal" under s 13 of the PID Act in its current form are set out in [110]-[113] below, in considering the 2nd statement of claim. The elements of a reprisal in s 13(1) were broadly the same in May 2021 (although s 13 was later amended in 2023). A reprisal consisted of three elements:
    • A person caused "detriment" to another person by an act or omission (s 13(1)(a));
    • When the act or omission occurred, the first person suspected or believed that the second person or any other person (relevantly) made or may have made a public interest disclosure (s 13(1)(b));
    • That suspicion or belief was the reason, or part of the reason, for the first person's act or omission (s 13(1)(c)).
20. Here, the Applicant alleges that the Department deliberately manipulated migration records and criminal history records, in response to the Applicant's disclosure in June 2019 (1st statement of claim, item 4(d)). The evidence said to support this allegation (or to provide a reasonable suspicion) is the difference in the reasons for decision for various bridging visa decisions by the Department and review tribunals from 29 June 2021 onwards, and the fact that some decisions refer to the alleged criminal conduct by the Applicant, and some do not.
21. The difficulty with this reprisal claim is that nothing in the evidence relied on by the Applicant provides any reasonable suspicion of a link between the conduct complained of, and the disclosure that the Applicant made in June 2019. To the contrary, I consider that the Applicant's arguments are purely speculative, and do not give rise to any prima facie case: see Hutchinson v Comcare [2017] FCA 1145 at [15] (Bromberg J).
    • The fact that some decision-makers refer to the alleged offending and some do not does not give rise to any reasonable suspicion of wrongdoing at all, let alone that the refusal decision is connected with the Applicant's earlier disclosure. The most obvious explanation is that some decision-makers thought that this matter was relevant to their decision whether to grant a bridging visa, and some did not. The weight to be given to this particular alleged offending (impersonating a police officer) is a matter on which there is real "decisional freedom": cf Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332 at [28] (French CJ).
    • More fundamentally, it is inherently improbable that any use of this alleged offending in decision-making was connected to a belief or suspicion by Departmental decision-makers that the Applicant had made a disclosure that attracted the PID Act. That is because the Department's position in 2019 was that this disclosure was not covered by the PID Act; indeed, the Department considered that there was no reasonable basis on which the disclosure could be considered a PID Act disclosure. I consider that the material before the Court does not give rise to any arguable case of reprisal in 2021, and that there is no proper basis on which the Court could order discovery against the Respondents to obtain further information on the matter: see [123] below.
22. I am conscious that summary judgment is not lightly given when there are contested issues of fact. However, in this case the version of events asserted by the Applicant (that adverse bridging visa decisions in 2021 were motivated by his disclosure in 2019) is so improbable, or fanciful, that there is no real question of fact to be tried, and summary judgment should be granted: see [28] above.
23. Conclusion - 1st statement of claim should be summarily dismissed: For these reasons, that part of the proceeding constituted by the 1st statement of claim lacks any reasonable prospects of success, and should be summarily dismissed under s 31A(2) of the Federal Court Act.

D.2 Second statement of claim (alleged reprisals under PID Act)

1. Essential allegations (2nd statement of claim): The 2nd statement of claim contends that the Applicant, when in immigration detention, was placed under "closer supervision and engagement placement" (which he refers to as enhanced monitoring) between at least 5 and 28 May 2025 (2nd statement of claim [1]).
   • The Applicant contends that this enhanced monitoring was used as a punitive measure in an act of deliberate reprisal (2nd statement of claim [2]).
   • He seeks compensation under s 14 of the PID Act and an apology (presumably under s 15 of that Act). Compensation is payable under s 14 of the PID Act if a person takes a "reprisal" against another person, as defined in s 13 of the Act.
2. The Applicant also contends that the enhanced monitoring constituted numerous human rights violations, and was contrary to Commonwealth policies (2nd statement of claim [4]-[5]).
3. Evidence (Applicant's 2nd affidavit): The Applicant's 2nd affidavit contains the following evidence and materials in support of this claim.
4. Detention mental health policy: The Applicant has attached an extract from a procedural instruction titled "Detention Health: Mental Health" dated 17 May 2023 (Mental Health PI). This instruction relevantly provides:
   • The Mental Health PI provides guidance on the use of closer supervision and engagement of high risk detainees (with "high risk" referring to a detainee's likelihood to challenge or damage the good order of an immigration detention facility (IDF), be at risk of harm to themselves, others or requests to be separated from the general detainee cohort) (para 1.1.1).
   • Under no circumstance can a detainee be placed under closer supervision and engagement arrangement as a punitive measure (para 1.1.4).
   • Placement of detainees in a closer supervision and engagement arrangement, regulating their movement within the facility and access to activities or services, should only be used as a last resort and when other strategies to manage their vulnerabilities, behaviour or the risk they pose have not succeeded. The aim is to safely reintegrate the detainee to the main detention population of the IDF following the cessation of the closer supervision and engagement arrangements (para 3.7.2).
   • Closer supervision and engagement is not punitive and should not be used as an incentive to change detainee behaviour. It is to be used to support high risk detainees until they no longer pose a significant risk to themselves, to others in the IDF or to the good order of the IDF (para 3.7.6).
   • Detainees should be placed under closer supervision and engagement for the shortest practicable time. Placement is considered in 24 hour segments. Placements exceeding 72 hours require an authorization by the Commander, National Immigration Detention (Operations) (para 3.7.11). (Paragraph 3.7.11 refers to section 3.11 (authorisation) of the Mental Health PI, but that section is not included in the extract provided by the Applicant.)
5. ABF Response (May 2025): An email from the Australian Border Force (ABF) Inspector, SA Detention Operations to the Applicant dated 15 May 2025 (the ABF Response) acknowledges receipt of a complaint from the Applicant dated 9 May 2025, and states:

Your complaint stated, in part, that MTC [Management & Training Corporation Pty Ltd] staff have advised (09 May 2025) that calls to any Government body are not allowed and your desired outcome from lodging your complaint is written clarification regard what calls can and cannot be made whilst on enhanced monitoring.

In response, and to provide clarity, the enhanced monitoring provided by Secure Journeys is intended to provide you with an opportunity to raise issues or concerns with your Detainee Service Officers (DSO) in real time, to support and assist you with referring your queries through the appropriate channels for resolution. These officers are there to allow your voice to be heard and provide you with advice and guidance on the most effective process to follow.

You have the right to contact scrutiny bodies such as the Commonwealth Ombudsman and the Australian Human Rights Commission, or Government bodies associated with your ongoing matters; however this should only be done through their official channels of enquiry. It is not appropriate for you to contact individual Government officials directly through unauthorised channels of communication; they are not familiar with your case and will not be able to assist you in any way. If you need to raise issues relating to your detention or immigration pathway, please speak to your DSO in the first instance, and they can assist you to submit a Detainee Request Form (DRF). Submitting a written DRF which outlines your request or concern in detail will hold the relevant stakeholders accountable to address your query promptly and provide you with a response.

1. Detainee request form (May 2025): A Detainee Request Form from the Applicant dated 15 May 2025 refers to the ABF Response, and contains the following handwritten statement:

It is agreed that there are benefits of having enhanced monitoring, however, none of the explanation provided from ABF addresses the request to have personal space while sleeping. This is reasonable because all calls that have and will be made to Government officials will be completed with facility phones.

1. The bottom half of the form (dated 16 May 2025) contains a handwritten note (apparently from an officer): "Approved to have closed door from bed time till [the Applicant] wake[s] so long as no contact is made through unofficial channels." The note is signed and dated by the officer.
2. Complaint that emails not received (June 2025): On 9 June 2025, the Applicant made a complaint that he was not able to reliably receive emails claimed to be sent by his Status Resolution Officer (SRO) to him. He states that the SRO had advised that an email was sent on 5 June 2025, but the Applicant had not received any email by close of 7 June 2025.
3. Other materials: For completeness, I mention that the Applicant's 2nd affidavit also attaches the following:
   • An email exchange between the Applicant and a humanitarian observer from the Red Cross from May-June 2025, in which the observer acknowledges receipt of documents, and the Applicant states that he has attached a further update (which is not included in the annexure).
   • An email from the Applicant to an officer in the Commonwealth Attorney-General's Department dated 2 August 2025, which contends that enhanced monitoring was used against the Applicant as a punitive measure in an act of deliberate reprisal.
   • A letter from the Office of the Inspector-General of Intelligence and Security dated 17 February 2024 which states that the Applicant did not have an adverse security assessment furnished against him by the Australian Security and Intelligence Organisation.
4. These documents do not advance the Applicant's claims.
5. Not simply matter of procedure: The Commonwealth's principal response is that these allegations are not properly raised by an "interlocutory application", because the matters raised in the 2nd statement of claim go wholly beyond the scope of the matters alleged in the 1st statement of claim, citing Australian Competition and Consumer Commission v George Weston Foods Ltd [2003] FCA 601; (2003) 129 FCR 298 at [56]- [57] (Conti J). There is much force in this argument. However, as noted, a summary dismissal application is concerned with substance, not pleadings. This procedural defect is not incurable, and it is appropriate that any decision to dismiss the proceeding summarily should be based on the content of the Applicant's claims.
6. Prospects of Applicant's claims that there was a s 13 "reprisal" in May 2025: The following discussion considers the prospects of success of the Applicant's claim that the enhanced monitoring in May 2025 amounted to a reprisal under s 13 of the PID Act.
7. Elements of s 13 "reprisal": The definition of "reprisal" in s 13(1) contains three elements. As the disclosure that is said to attract the PID Act was made in the past (at the time of the alleged reprisals), the following concentrates on those parts of s 13(1) which apply to past disclosures, as distinct from possible future disclosures. Adopting the descriptive labels used in Hutchinson v Comcare (No 4) [2019] FCA 1133 at [31] (Bromberg J), the three elements in s 13(1) are:
   • First, detrimental conduct: that conduct by one person (relevantly) resulted in detriment to another person (s 13(1)(a));
   • Second, a PID belief: that, at the time of that conduct, the first person believed or suspected (relevantly) that the second person, or any other person made, or may have made, a public interest disclosure (s 13(1)(b)); and
   • Third, a prohibited reason: that the belief or suspicion was the reason, or part of the reason, for engaging in the conduct (s 13(1)(c)).
8. With the detrimental conduct element, the inclusive definition of "detriment" in s 13(2) is modelled on the corresponding definition in s 1317ADA of the Corporations Act 2001 (Cth): see Explanatory Memorandum to the Public Interest Disclosure Amendment (Review) Bill 2022 (Cth) at [3.28]. In that context, this Court has held that "detriment" in its ordinary meaning is any disadvantage or harm, and that the inclusive list in s 1317ADA is illustrative only: Mount v Dover Castle Metals Pty Ltd [2025] FCA 101; (2025) 339 IR 1 at [148] (Katzmann J); Reiche v Neometals Ltd (No 2) [2025] FCA 125 at [75] (Feutrill J).
9. The PID belief element in s 13(1)(b) does not turn on whether the disclosure was in fact a "public interest disclosure" as defined, but rather whether the person who carried out the alleged reprisal held a subjective belief or suspicion that another person (relevantly) had made, or may have made, a public interest disclosure: see Hutchinson (No 4) at [32]. Whether the first person had that belief or suspicion is quintessentially a question of fact: see Reiche (No 2) at [84]. Notably, a person alleging a reprisal under the PID Act retains the onus of proving all elements in s 13(1), including the PID belief element (whereas s 1317AD(2B) of the Corporations Act reverses the onus of proof in respect of the belief or suspicion element, and the prohibited reason element in s 1317AD): see Hutchinson (No 4) at [24]. There is a nice question whether the first person's subjective belief or suspicion must extend to thinking or believing that the other person has done something that is, in law, a "public interest disclosure", or whether it is enough that the first person believes or suspects the underlying matters that comprise a public interest disclosure (such as disclosure by a public official, to an authorised recipient, relating to disclosable conduct): see Mount at [377]-[379].
10. The prohibited reason element in s 13(1)(c) is a question of fact that must be answered in the light of all the facts that are established in the proceeding: see Reiche (No 2) at [96](4). This element is met if the PID belief is "part of" the reason for engaging in conduct, but this does not include a reason that is incidental or that is a not substantial or operative factor in the reason for the detrimental conduct: Reiche (No 4) at [99].
11. What conduct is established on the current evidence? On the materials before the Court, the conduct constituting "enhanced monitoring" between 5 and 28 May 2025 is that the detaining officers placed restrictions on which government officials the Applicant was permitted to contact by telephone: see the ABF Response set out in [102] above. In particular:
    • The ABF states that the Applicant has the right to contact scrutiny bodies and government bodies associated with his ongoing matters, but says this should occur "through their official channels of enquiry". The ABF states that it is not appropriate for the Applicant to contact individual government officials "directly through unauthorised channels of communication", because (it is said) those officials are not familiar with the Applicant's case and will not be able to assist him.
    • In addition, it appears at some stage that the ABF required that the door to the Applicant's room be kept closed at night, to prevent him from making unauthorised calls, although that requirement was later relaxed: see [103]-[104] above.
12. The Applicant has also provided evidence that he complained in June 2025 about not receiving emails: see [105] above.
13. No reasonable prospect of establishing PID belief or prohibited reason elements: For the following reasons, I consider that there is no reasonable prospect of the Applicant establishing either the PID belief or prohibited reason elements in the alleged "reprisal".
14. In Hutchinson v Comcare (No 2) [2018] FCA 1179 at [26], Bromberg J held that, if there is no direct evidence that the relevant persons held the PID belief or were motivated by the prohibited reason, and there is no arguable basis to sustain an inference as to those matters, that would be an appropriate case for summary dismissal. That reasoning applies to this case.
15. Plainly, there is no direct evidence before the Court to suggest that officers in the ABF held a PID belief (namely, that the Applicant had made or may have made a public interest disclosure), or that the enhanced monitoring was motivated in any way by a PID belief. The ABF Response summarised above does not disclose any awareness of the Applicant having made any disclosures, and this response gives an entirely unrelated reason for imposing these restrictions: that the Applicant contacting individual officers directly would not assist the resolution of his issues. The Applicant bears the onus of proof, and the fact that the Respondents have not called evidence from the ABF officers about their state of mind (other than what can be gleaned from the ABF Response) cannot be used to make up a deficiency in the Applicant's case: Hutchinson (No 4) at [215].
16. In addition, there is no arguable basis on the material before the Court to make an inference that the relevant ABF officers held the PID belief, or were motivated by a prohibited reason. Again, the ABF have provided a coherent explanation for the restrictions imposed that is unrelated to any previous disclosures made by the Applicant. Nothing in the surrounding circumstances provides any reason for not accepting this explanation: to the contrary, the Department's position (which forms the complaint in the 1st statement of claim) was that the Applicant had not made a public interest disclosure. Moreover, that disclosure was made almost six years before the enhanced monitoring, so there is nothing in this chronology to suggest that these matters were connected.
17. In light of these conclusions, it is not strictly necessary to decide whether the enhanced monitoring amounts to "detriment". Nonetheless, and despite the breadth of that expression in s 13(2), I do not think that the ABF regulating the persons within government who the Applicant can call directly is a "detriment" of a kind covered by the PID Act, noting that a "reprisal" can (among other things) attract potential criminal liability (see PID Act s 19). The stated reason for the ABF's action was to support the Applicant in referring his enquiries through appropriate channels for resolution. And the Applicant himself has acknowledged that there were benefits of having enhanced monitoring: see [103] above. The Applicant's complaint about not receiving emails falls outside the scope of the 2nd statement of claim, and in any event there is nothing before the Court to suggest any connection with a PID Act disclosure.
18. Potential objections to summary dismissal: Given the Applicant is self-represented, I have considered two possible arguments that could be raised by him against summary dismissal.
19. First, the Applicant might argue that the simple chronology establishes that the enhanced monitoring was motivated by this litigation. However, that matter (even if it were established) would not amount to a "reprisal" within s 13(1) of the PID Act. The Applicant must establish that the enhanced monitoring was motivated by the making of a PID Act disclosure (or suspected PID Act disclosure), not that the enhanced monitoring was motivated by the Applicant bringing proceedings to challenge a decision that treated his disclosure as falling outside the scope of the PID Act. (To be clear, I am not suggesting that the enhanced monitoring actually was motivated by that factor.)
20. Second, the Applicant might argue that he should be given an opportunity to obtain information from the Respondents to show their reasons for taking the enhanced monitoring measures. I note he sought leave to issue a subpoena to the Respondents to obtain this information (which I deferred until the hearing of this application). However:
    • The proper method of obtaining documents from a party is through discovery, not a subpoena: see Australian Competition and Consumer Commission v Shell Co of Australia Ltd [1999] FCA 212; (1999) 161 ALR 686 at [48] (Cooper J); Pasini v Vanstone [1999] FCA 1271 at [30] (Finn J); Fastbet Investments Pty Ltd v Deputy Commissioner of Taxation (No 2) [2018] FCA 1418; (2018) 108 ATR 730 at [8] (Derrington J); Warburton Environment Inc v Secretary, Department of Energy, Environment and Climate Action [2024] FCA 1272 at [26]- [31] (Horan J).
    • The Court does not order discovery to advance a claim that is based on a mere allegation or bare speculation, in the absence of any evidence or facts that might ground a reasonable suspicion: Minister for Immigration and Multicultural and Indigenous Affairs v Wong [2002] FCAFC 327 at [32] (the Court); Jilani v Wilhelm ; at (the Court); at (Abraham J).
21. In summary, there is no real question of fact or law raised by the Applicant's 2nd statement of claim that should proceed to trial: cf Hutchinson (No 2) at [16]-[17], citing Dandaven v Harbeth Holdings Pty Ltd [2008] FCA 955 at [6] (Gilmour J).
22. Not necessary to consider other claims: As noted, the Applicant also contends that the enhanced monitoring constituted numerous human rights violations, and was contrary to the Mental Health PI, particularly paras 1.1.4 and 3.7.6. It is far from clear that there has been any breach of the Mental Health PI, or any human rights instruments. However, these claims, even if established, would not be a basis for the relief sought, which is compensation under s 14 of the PID Act, and an apology under s 15. (As an aside, nor would those claims undermine the legality of the Applicant's current detention.)
23. Conclusion - 2nd statement of claim should be summarily dismissed: For these reasons, the claims that the enhanced monitoring of the Applicant in May 2025 amounts to a "reprisal" under s 13 of the PID Act lacks any reasonable prospects of success. Therefore, there is no basis for ordering compensation under s 14 of that Act, or an apology under s 15. That part of the proceeding constituted by the 2nd statement of claim should also be summarily dismissed under s 31A(2) of the Federal Court Act.

1. For the reasons set out above, the whole proceeding should be summarily dismissed under s 31A(2) of the Federal Court Act.
2. Costs - PID Act, s 18: By s 18 of the PID Act, an applicant for an order under ss 14 or 15 may only be ordered to pay costs if (relevantly) "the court is satisfied that the applicant instituted the proceedings vexatiously or without reasonable cause".
3. Applicable principles: The discretion to award costs under s 18 of the PID Act in an otherwise no-costs jurisdiction is one that must be exercised with caution and the case for its exercise should be clearly demonstrated: Hutchinson v Comcare (No 5) [2019] FCA 1665 at [4] (Bromberg J), and the cases cited. In assessing whether a proceeding was instituted "without reasonable cause", the relevant question is whether the proceeding had reasonable prospects of success at the time it was instituted, not whether it ultimately failed: Hutchinson (No 5) at [9].
4. In Hutchinson (No 5) at [18]-[20], Bromberg J found that at the time the proceedings were instituted, the applicant had no reasonable prospect of demonstrating at trial an essential element of s 13 of the PID Act; namely, that the impugned persons held the requisite belief which formed the reason, or part of the reason, for the detrimental conduct.
5. Bar on costs in s 18(1) does not apply: That reasoning applies here: the material filed with the Applicant's statements of claim (which is the relevant time for assessing the prospects of these PID Act claims) had no reasonable prospect of demonstrating that the ABF officers held the requisite belief which formed part of the reason for the conduct complained of. For that reason, the bar in s 18(1) on the award of costs does not apply. There is no other reason why costs should not follow the event.

I certify that the preceding one hundred and thirty-one (131) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Hill.