Federal Court of Australia|1991-04-12|Before: Lockhart J, Mr P

The applicant pay two-thirds of the costs of the respondents of the proceeding including any reserved costs.

The respondents pay the costs of the applicant of the notice of motion to dismiss the proceeding.

NOTE: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

2. The applicant, Arun Kumar, a Fijian national, commenced this proceeding challenging three decisions. The first decision was made by the second respondent (Patrick Dever) as delegate of the first respondent (The Minister for Immigration Local Government and Ethnic Affairs) on 15 November 1990 not to consider the issue of what is described in the evidence as a "student visa" to the applicant. The second decision was made, also by Mr. Dever, on the same day to arrest and detain the applicant. The third decision was made on 23 November 1990 by Mr P.D. Scott, as delegate of the Minister, to sign a deportation order against the applicant. Mr Scott is not a party to the proceeding; but no point was taken by any of the respondents about this, doubtless because the Minister is the first respondent and Mr Scott acted as his delegate. The case in relation to these decisions is brought pursuant to the Administrative Decisions (Judicial Review) Act 1977 (the "ADJR Act") and s. 39B of the Judiciary Act 1903.

3. When the hearing commenced before me on Wednesday morning of this week counsel for the applicant challenged all three decisions; but at 2.15 pm that day he abandoned the applicant's attack on all decisions except the decision to arrest the applicant.

4. The applicant was born in Fiji on 24 February 1961. He entered Australia at Sydney on 13 February 1983 as a student. Upon arrival he was granted an entry permit valid until 10 March 1984. He was thereafter granted further entry permits, the last of which expired on 15 March 1990. On or about 15 March 1990 the applicant sent to the Department of Immigration, Local Government and Ethnic Affairs ("the Department") by certified mail a document purporting to be an application for renewal of his "student visa". This was followed by a number of discussions between the applicant and officers of the Chatswood and Bankstown branches of the Department between June - July 1990 and November 1990, to which I shall refer later.

5. On 15 November 1990 the applicant attended at the Bankstown office of the Department where he was interviewed by Mr Dever in the presence of the third respondent (Paul O'Connor), an officer of the Department. Mr Dever decided to arrest the applicant which he did. The fourth respondent (David Dickie) later entered the room and handcuffed the applicant. The applicant was conveyed by car to the Villawood Detention Centre. He was brought before "a prescribed authority" on the following day as required by s. 92(3) of the Migration Act 1958 ("the Migration Act") when his further detention in custody was authorised. No challenge is made to the subsequent detention of the applicant. He was released from custody in late December 1990 pending the determination of these proceedings. It is common ground that at all material times the applicant was an illegal entrant and liable to be deported.

6. The decision by Mr Dever to arrest the applicant was challenged on a number of grounds, namely:

1. Although it is common ground that the power of arrest is that

conferred by s. 92 of the Migration Act it was argued that, in the

absence of an express power to handcuff a person arrested under

that section, no power to handcuff can be implied; therefore the

handcuffing and, so it was said, the arrest which preceded it are

invalid.

2. If there is an implied power to handcuff, it was argued that on

the facts of this case the power was used so excessively or

unreasonably that the handcuffing was unlawful and vitiated the

arrest.

3. The decision to arrest was said to be so unreasonable that no

4. It was asserted that there was a failure by Mr Dever as the

arresting officer to comply with s. 92(3) in that he did not

inform the applicant of the reason for the arrest forthwith after

the arrest was the consequence that the arrest was said to be

invalid.

7. I shall consider first the question whether the power to handcuff a person who has been arrested can be implied under the Migration Act, in particular s. 92. I observe that similar questions may arise under other sections including s.93. Section 92 so far as presently relevant reads as follows:

"92(1) An officer may, without warrant, arrest a person whom

the officer reasonably supposes to be an illegal entrant.

(2) A person arrested under subsection (1) or (10) may,

subject to this section, be kept in the custody of any officer

or in such other custody as the Minister or the Secretary

directs.

(3) Where an officer arrests a person under subsection (1) or

(10), the officer shall forthwith inform the person arrested of

the reason for the arrest, and that officer or another officer

having the custody of that person shall take the arrested person

before a prescribed authority within 48 hours after the arrest

or, if it is not practicable to bring the arrested person before

a prescribed authority within that period, as soon as practicable

that period, and, if the arrested person is not so brought before a

prescribed authority, he or she shall be released."

8. A power of arrest is a severe erosion of a person's liberty. This is recognised by the safeguards which s.92 itself provides: it requires that the arresting officer forthwith inform the person arrested of the reason for the arrest (see Christie v Leachinsky [1947] UKHL 2; (1947) AC 573 per Lord Simonds at 591); it requires that the arrested person is taken before a prescribed authority within 48 hours after the arrest; and it also has constraints imposed upon the prescribed authority in authorising the further detention of the person in custody.

9. The circumstances in which an "officer" may without warrant arrest a person whom the officer reasonably supposes to be an illegal entrant are obviously many and various. Some people may offer no resistance to arrest; but others may offer varying degrees of resistance including violence and threats endangering the safety of the arresting officer or other persons or property.

10. There is no general rule that all persons arrested and being conveyed to a place of detention or from a place of detention to a court must be handcuffed. It is obviously necessary that an arresting officer take proper precautions when conveying a person in custody; and all the circumstances of the case must be looked at to determine whether there are reasonable grounds for the arresting officer to handcuff the person. If a person is unreasonably handcuffed then he is entitled at common law to bring an action to recover damages for the indignity.

11. In Wright v Court, decided as long ago as 1825 (6 DandR 623), Bayley J. said at 624:

"The defendants have also justified the

handcuffing the plaintiff in order to prevent

his escape; but they have not averred that it

was necessary for that purpose, or that he had

attempted to escape, or that there was any

danger of his escaping; and such a degree of

violence and restraint upon the person cannot be

justified even by a constable, unless he makes

it appear that there are good special reasons

for his resorting to it."

12. In Leigh v Cole (1853) 6 Cox C 329 Williams J. said at 331-2:

"The other points involve questions of law of great importance.

First, with respect to handcuffing, the law undoubtedly is, that

police officers are not only justified, but they are bound to take

all reasonably requisite measures for preventing the escape of

those persons they have in custody for the purpose of taking them

before the magistrates; but what those reasonable measures are

must depend entirely upon circumstances, upon the temper and

conduct of the person in custody, on the nature of the charge, and

a variety of other circumstances which must present themselves to

the mind of any one. As to supposing that there is any general

rule that every one conveyed from the police station to the

magistrates' court is to be handcuffed, seems to me to be an

unjustifiable view of the law, and one on which the police

officers are mistaken. In many instances a man may be conveyed

before the magistrates without handcuffing him, and taking him

thus publicly through the streets. On the other hand, it is

necessary to take proper precautions in conveying a person in

custody to be dealt with by the magistrates; and you must say

whether, looking at all the circumstances of the case, the

defendant used unreasonable precautions in this case, or used

unnecessary measures to secure the safe custody of the plaintiff."

In the Canadian case of Fraser v Soy (1918) 44 DLR 437 (a case where it was conceded that the arrest was justified) complaint was made of the handcuffing of the plaintiff by the defendant (a police constable) Mellish J. at 442 posed the test as to when handcuffing is justifiable as being whether:

"the handcuffing was reasonably necessary under the circumstances

as a matter of precaution to prevent the prisoner's escape".

13. See also R v Stafford (1976) 13 SASR 392 per Bray C.J. at 401. The cases are conveniently collected by Dr G.A. Flick in his work "Civil Liberties in Australia", 1981, at 42.

14. In my opinion the power of arrest conferred by s. 92 implies a power to handcuff the person arrested, but only where the handcuffing is justified in order to prevent the person from escaping or endangering the safety or property of persons.

15. The handcuffing of defendants at their trials for criminal offences is a more abundant source of case law than the handcuffing of persons upon arrest; and the cases with respect to the former provide little assistance to the latter: see the article by Mr Roderick Munday "Handcuffing the Defendant", New Law Journal (1990) vol 140 No. 6439 p 47; also the judgment of Rogers J. in Murray v Flack (1983) 6 A Crim R 394.

16. I turn to the question whether the decision by Mr Dever to arrest the applicant was so unreasonable that no reasonable person could have made it or to the use of words of Lord Greene M.R. in Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1947] EWCA Civ 1; (1948) 1 KB 223 at 230, 233-234 was "manifestly unreasonable". Evidence was given by affidavit and orally.

17. Oral evidence was given by the applicant, Mr Dever and Mr O'Connor. Mr O'Connor was present during the interview conducted by Mr Dever with the applicant on 15 November. Mr Dickie, who is an officer of the Department and the supervisor of Mr Dever, did not give evidence.

18. There is agreement between the witnesses as to much of what was said at the interview of 15 November; but there is disagreement between the applicant on the one hand and between Mr Dever and Mr O'Connor on the other on significant matters. Having observed the witnesses, heard their evidence, read their affidavits and considered it all in the light of the probabilities I prefer the evidence of Mr Dever and Mr O'Connor where it conflicts with the evidence of the applicant.

19. Before turning to the events of 15 November I shall briefly state some of the facts that relate to events earlier than that day. The applicant spoke to an officer of the Department at Chatswood by telephone about the end of June or middle of July 1990 with reference to his application "for the renewal of my visa" sent by him in March. He telephoned the Chatswood branch of the Department again about the end of October 1990. He went to the Chatswood branch of the Department on 5 November 1990 and later telephoned the Bankstown branch of the Department when he spoke to an officer. The same day the applicant went to the Bankstown branch of the Department and spoke to Mr O'Connor with respect to his application for an entry permit. Mr O'Connor made enquiries of the Overseas Student Office ("the OSO") and Sydney TAFE and was told in effect that the applicant's attendance and performance at his tertiary course over a lengthy period had been unsatisfactory and that the applicant had been written to and asked by the OSO to explain his absence, but the OSO had received no reply and that the OSO had withdrawn its support for the applicant. He was told that the applicant had not been seen at classes at Sydney TAFE for some two months.

20. At some time before 15 November Mr O'Connor referred the Department's file about the applicant to Mr Dever for further investigation and enquiry and subsequently told Mr Dever that the applicant was coming into the Bankstown office for an interview on 15 November. After the file was referred to him, Mr Dever spoke with another officer of the Bankstown office of the Department and was told that there was no valid application for an entry permit before the Department because the prescribed fee had not been paid in relation to it. Mr Dever was also informed that, as support had now been withdrawn by the OSO from the applicant, he could not then pay the fee for the application (the particular relevance of the OSO concerns a question which arose under Migration Regulations 35AA(1)(b)(ii) and 122(e)(iii)(C) but is no longer in dispute).

21. On 15 November the applicant came to the Bankstown office and was interviewed by Mr Dever in the presence of Mr O'Connor. It is not necessary to recite the evidence with respect to the whole of that interview, except to say that I accept the evidence of Mr Dever and Mr O'Connor with respect to it. All I need find specifically is that Mr Dever asked the applicant whether he was attending "school". He replied "Yes". He was asked when was the last time he did attend "school". He said "Last week. This week I was in the library studying. I am going to have an exam next week". Mr Dever said:

"Mr Kumar, there has been information given to

the Department which states that you have not

been seen at the school for two months and that

your attendance has been assessed as unsatisfactory."

The applicant replied "That is not true". Mr Dever then showed the applicant a copy of a letter from the OSO to the applicant asking him to show cause for his unsatisfactory attendance and Mr Dever asked the applicant whether he had received the letter and the applicant said he had not. The applicant said he had been sick for many months with headaches and had seen many doctors about it. He was asked by Mr Dever whether he could give him the names of any doctors that had treated him for this and he said he had seen many doctors. He was asked by Mr Dever to name the doctors treating him and he said:

"There was a Dr Adams. He gave me a month off."

The applicant gave Mr Dever a receipt for Dr Adams's services. After obtaining the applicant's approval to his telephoning Dr Adams, Mr Dever telephoned the number which had been given to him. He spoke initially to a receptionist at Dr Adams's consulting rooms and later to a person whom he assumed was a doctor there, though not apparently Dr Adams, who said that Dr Adams had seen the applicant twice for headaches and that the applicant had "been given two days off in relation to those headaches". Mr Dever then told the applicant of the information which the doctor had given him. Towards the end of the interview Mr Dever said to the applicant:

"Mr Kumar, given the misleading information you have provided in

relation to your attendance and your medical condition, and given

that you have no valid application before the department I am

arresting you under section 92 of the Migration Act as I have

reason to believe you are an illegal entrant and you will not

abide by reporting conditions. I further said to Mr Kumar 'You

will have two working days to either lodge an acceptable

application before the department or present an airline ticket to

the department which will confirm your departure from Australia.

Given that you are not able to give any valid reason why you

should be allowed to remain in Australia I believe getting a

ticket would be your best option'.""

22. Mr Dickie entered the room towards the end of the interview and handcuffed the applicant. Arrangements were then made for the applicant to be taken by car to the Villawood Detention Centre that afternoon.

23. Mr Dever made the decision to arrest the applicant because he took the view that the applicant was an illegal entrant; that information which the applicant had given about being told by Dr Adams that he could have "a month off" was false and misleading; that the information given by the applicant about his attendance at "school" was also false and misleading; that he had no valid application before the department for an entry permit; and that he doubted the correctness of the applicant's assertion that he had not received earlier correspondence from the department. Mr Dever formed the opinion that he could not in those circumstances safely repose confidence in the applicant's observance of reporting conditions that would necessarily be imposed upon him if he were not taken into custody. I am satisfied that there were reasonable grounds to justify Mr Dever's beliefs and apprehensions and that he was justified in making the decision to arrest the applicant.

24. There was some evidence touching the question whether the applicant had with him on 15 November medical certificates from medical practitioners about him. The evidence is too unclear to enable any findings to be made that the applicant did in fact have any such certificates with him that day. It was suggested in argument that Mr Dever should in the circumstances have asked the applicant to produce the medical certificates, if any, which he asserted he had with him. Nothing of any materiality flows from this circumstance and I doubt if the applicant had any medical certificates upon his person at that time.

25. As to the assertion by the applicant that he was not informed forthwith after he was arrested of the reason for his arrest as required by s. 92(3), I accept the evidence of Mr Dever that he was given those reasons, namely, those mentioned earlier in the extract from his affidavit evidence.

26. That leaves the question of whether the handcuffing of the applicant was unreasonable in all the circumstances and so unreasonable as to vitiate his arrest. It was not suggested by any witness that the applicant conducted himself or his demeanour was such as to suggest that he would be likely to escape, injure or interfere with persons or property or that he threatened violence. Indeed, the evidence points in the contrary direction. In my opinion the handcuffing of the applicant was unreasonable. The unreasonable handcuffing of the applicant does not, however, vitiate the arrest of the applicant who was lawfully arrested, though not lawfully handcuffed. The arrest was completed before the handcuffs were put on the applicant and the circumstances attending the handcuffing of the applicant did not vitiate the arrest itself. I am not persuaded that any form of relief should be granted to the applicant flowing from the fact that he was unreasonably handcuffed; nor is any suggested. It is not suggested that he suffered damage because of it, although doubtless he suffered indignity and embarrassment. The handcuffing was an unnecessary interference with his person and dignity.

27. The respondents filed a notice of motion for the dismissal of the proceeding on the ground of the Court's want of jurisdiction. The point raised by the motion is whether the Court has jurisdiction to hear the applicant's case insofar as it claims damages for false arrest and imprisonment. The applicant's case is principally for review under the ADJR Act of the three decisions mentioned earlier relating to his right to remain in Australia and for remedies pursuant to s. 39B of the Judiciary Act. He also seeks damages for false arrest and imprisonment on the basis of his arrest on 15 November 1990; this is a common law claim for damages.

28. It follows from my findings of fact that the damages claim for false arrest and imprisonment must fail, so the only real present relevance of the motion is with respect to costs. It was necessary to decide the lawfulness of the arrest of the applicant in order to decide the matters arising under the ADJR Act and s. 39B. The factual matrix surrounding the arrest and handcuffing is inseverable from the federal components of the applicant's claim. Certainly they are not separate and disparate. See Philip Morris Inc. v Adam P. Brown Male Fashions Pty. Limited (1981) 148 CLR 457; Turner v Owen [1990] FCA 358; (1990) 21 ALD 115. The motion fails.

29. I would dismiss the application. As the applicant has succeeded on the issue relating to handcuffing he should not bear the whole of the costs of the respondents. He should pay two-thirds of the respondents' costs. The applicant has succeeded on the respondents' motion to dismiss the proceedings for want of jurisdiction. The respondents must pay the costs of the applicant of the motion.

30. The order of the Court is that the application is dismissed, the applicant is to pay two-thirds of the costs of the respondents of the proceeding including any reserved costs; and the respondents are to pay the costs of the applicant of the motion.

Decisions (Judicial Review) Act 1977

Re Arun Kumar v Minister of Immigration Local Government and Ethnic Affairs; Patrick Dever; Paul O'Connor and David Dickie [1991] FCA 130; 100 ALR 439 28 FCR 128 (12 April 1991)

Re Arun Kumar v Minister of Immigration Local Government and Ethnic Affairs; Patrick Dever; Paul O'Connor and David Dickie [1991] FCA 130; 100 ALR 439 28 FCR 128

At a glance

Court

Decision date

Before

Source

Judgment (52 paragraphs)

Parties

Legislation Cited (3)

Cases Cited (3)

Re Arun Kumar v Minister of Immigration Local Government and Ethnic Affairs; Patrick Dever; Paul O'Connor and David Dickie [1991] FCA 130; 100 ALR 439 28 FCR 128 (12 April 1991)