FEDERAL COURT OF AUSTRALIA

SZVCP v Cho [2017] FCA 310

ORDERS

THE COURT ORDERS THAT:

1.    The originating application for judicial review filed on 10 November 2016 be dismissed.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

ORDERS

THE COURT ORDERS THAT:

1.    The originating application for judicial review filed on 21 November 2016 be dismissed.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

ORDERS

THE COURT ORDERS THAT:

1.    The decision of the Deputy District Registrar made on 23 November 2016 be set aside.

2.    The documents the subject of the decision of the Deputy District Registrar made on 23 November 2016, namely the originating application for relief under s 39B Judiciary Act 1903 dated 18 November 2016, the statement of claim dated 18 November 2016 and the affidavit of the applicant sworn 18 November 2016, be referred to a Registrar of the Court, not being the Deputy District Registrar who made the decision, for further consideration.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

MARKOVIC J:

1    There are three originating applications before the Court filed on 10 November 2016 (First Application), 21 November 2016 (Second Application) and 29 November 2016 (Third Application) respectively. In each application the applicant seeks judicial review of a decision of a Deputy District Registrar of this Court refusing the filing of an originating application, statement of claim and affidavit pursuant to r 2.26 of the Federal Court Rules 2011 (Cth) (Rules). The decision the subject of each application was made by a different Deputy District Registrar.

2    The applications for judicial review were made in Form 66, the relevant form to apply for an order under s 11(1) of the Administrative Decisions (Judicial Review) Act 1977 (ADJR Act): r 31.01 of the Rules. While not expressed to be the case, I have taken each of the applications to be made pursuant to r 31.01(1) of the Rules and s 11(1) of the ADJR Act.

3    The applicant has filed an affidavit in support of each application and one set of submissions common to all three applications. The Deputy District Registrars who are respondents to the First Application and Third Application have filed submitting notices. The Deputy District Registrar who is the respondent to the Second Application has not appeared. The applicant has agreed that the applications can be determined on the papers pursuant to s 20A of the Federal Court of Australia Act 1976 (Cth). I am satisfied that determination of the matter would not be significantly aided by an oral hearing.

the applications

4    The three applications for review of the Deputy District Registrars’ decisions are slightly different in their terms but have the following common features:

(1)    the applicant says that he was aggrieved by the decision because it was an abuse of power by the Deputy District Registrar and because the decision was beyond power; and

(2)    the applicant alleges as a ground of review that the decision was a denial of procedural fairness because:

(a)    the Deputy District Registrar failed to give the applicant an opportunity to regularise the documents; and

(b)    the Deputy District Registrar was more concerned with form over substance as the documents revealed “a cause of action funded (sic) on the originating application as it went beyond the Migration Act 1958 and but (sic) also Constitutional matters … as my documents revealed that the decision is unconstitutional”.

5    The Second Application and the Third Application additionally include the following common allegations as to why the decision of the Deputy District Registrar in each case was a denial of procedural fairness:

(1)    the Deputy District Registrar misinterpreted and misapplied r 2.26 of the Rules and “in particular what amounts to an abuse of the process of the Court and frivolous and vexatious (sic)”;

(2)    the decision wrongly assumes that the documents are an abuse of process, frivolous and vexatious “without regards (sic) and a failure and complete disregard to take into account that I have in 2011 brought a case under se4ction (sic) 39B of the judiciary (sic) Act 1903 before the Federal Court claiming damages and compensation heard by his honour (sic) Jacobson J and his honour (sic) Nicholas J and that it was not an abuse of the Court’s process, nor frivolous, and nor was it vexatious then but it was lost based specifically on the statute of limitations Act or grounds”.

6    The Third Application includes two further bases upon which the applicant alleges that he was denied procedural fairness by the Deputy District Registrar. They are that:

(1)    the grounds “raised in the documents are very different to the grounds of the other documents and that is the function of the Court to decide and the decision is an abuse of power, is irrational, illogical (sic) unreasonable and plainly unjust and lacks an intelligible justification”; and

(2)    the decision “conjures an apprehension of bias and pre determination and or acting on an instructions (sic) from another person”.

7    In each of the three applications the applicant seeks the following relief:

1.    The decision of the deputy Registrar be quashed and otherwise set aside.

2.    The deputy registrar be ordered and directed to accept the documents for filing and should file the documents.

3.    Each party bear their own costs.

8    The applicant has filed an affidavit in each proceeding in substantially identical terms which as well as setting out facts relevant to each application includes submissions in support of his application. In each of his affidavits the applicant:

(1)    sets out the date on which he attempted to file the documents, the date the Deputy District Registrar refused their filing and annexes the Deputy District Registrar’s decision;

(2)    asserts that, contrary to the conclusion reach by the Deputy District Registrar, the documents were not frivolous or vexatious and nor was the proposed proceeding an abuse of process;

(3)    refers to proceeding number NSD 2354 of 2011 which he commenced on 23 December 2011 in this Court (2011 Proceeding) and which he describes as a “similar originating application”. The applicant says that the documents are more detailed than those filed in the 2011 Proceeding;

(4)    explains that the 2011 Proceeding related to “mental injury” which the applicant alleged he sustained when detained in Baxter Immigration Detention Centre from 2002 to 2004 and was dismissed by Jacobson J because of the operation of the Statute of Limitations. The applicant applied for leave to appeal from the orders made by Jacobson J, which application was determined by Nicholas J. He says that he relies on the judgments of Jacobson J and Nicholas J;

(5)    refers to and relies on the judgment of a Full Court of this Court (Kenny, Robertson and Griffiths JJ) in “proceeding number NSD 1243/2015, FCAFC 24”. The applicant says that the judgment “[gives] rise to [his] commencing this new proceedings for which I faxed the documents that were refused by the registrar”; and

(6)    alleges that the decision of the Deputy District Registrar in each case is “an abuse of power and an on (sic) reasonable, arbitrary use of power by the deputy registrar, power that is reserved to be exercised by a Justice of the Court and it is a denial of procedural fairness”.

9    In addition, in his affidavit sworn 5 December 2016 in support of the Third Application the applicant:

(1)    refers to proceeding number NSD1054 of 2016 and my judgment given in that proceeding on 18 October 2016. The applicant says that he relies on the documents in that proceeding, my judgment and the substantive application filed in that proceeding on 22 August 2016 that I will be hearing in March 2017;

(2)    says that his originating application “is and was directly linked to my Migration Matters and visa applications and my treatment in detention by the Commonwealth are (sic) reveal a pattern of abuse, bullying, discrimination, harassment, intimidation, vilification and being vilified, threats of physical violence and constant abuse resulting in my suffering a psychiatric injury and an incapacitating mental injury as a consequence of the negligence and breach of duty of care by the Commonwealth”;

(3)    says that only the Court can determine his case “in any stage and it is not for a deputy District Registrar to decide without a trial as to its success or failure as the matters raised in the documents relates (sic) to the Constitution and its interpretations”; and

(4)    alleges that the Deputy District Registrar breached his right to a fair trial and a hearing before the Court under “Chapter 111 of the Constitution”.

the applicant’s proposed claims and the deputy District Registrars’ decisions

10    In each proceeding before me the applicant’s proposed originating application and statement of claim the subject of the Deputy District Registrars’ decisions name the same respondents: the Commonwealth of Australia, the Minister for Immigration and Border Protection, the Secretary of the Department of Immigration and Border Protection and Serco Australia Pty Ltd. But the content of the proposed originating applications and proposed statements of claim differ, at least in form, if not significantly in effect, in each case. I set out the text, omitting formal parts and as written, of the originating application and statement of claim which the applicant attempted to file relating to: the First Application at Appendix 1 to these reasons; the Second Application at Appendix 2 to these reasons; and the Third Application at Appendix 3 to these reasons.

11    The Deputy District Registrar’s letter dated 7 November 2016 (First Decision), the subject of the First Application, provided, as written:

I refer to the following documents which were received by the Registry on Thursday 3 November 2016:

•    Originating Application (Form 69);

•    Statement of Claim (Form 17); and

•    Supporting Affidavit (Form 59)

("the Document"')

I have considered the Document to see if the Registry should accept them for filing.

I note the terms of Rule 2.26 of the Federal Court Rules which states:

A Registrar may refuse to accept a document (including a document that would, if accepted, become an originating application) if the Registrar is satisfied that the document is an abuse of the process of the Court or is frivolous or vexatious:

(a)    on the face of the document; or

(b)    by reference to any documents already filed or submitted for filing with the document.

In my view, the Document is inadequate, and should it be accepted, it might otherwise be struck out. In particular, you have not provided the details or, on what basis you say there is (or are) "jurisdictional error(s)" arising in the Ministers decision under the Migration Act 1958 (Cth) to make a valid challenge under s 39B of the Judiciary Act 1903 (Cth).

In my view, for these reasons, the application cannot possibly succeed and therefore the Document is an abuse of the process of the Court and is frivolous and vexatious.

12    The Deputy District Registrar’s letter dated 14 November 2016 (Second Decision), the subject of the Second Application, provided, as written:

I refer to the following documents which were faxed to the Registry on 14 November 2016:

•    Originating application for relief under section 39B Judiciary Act 1903 (Form 69);

•    Statement of Claim (Form 17);

•    Affidavit (Form 59); and

•    Application for Exemption from Paying Court Fees- Financial Hardship

("the Documents")

I have considered the Documents to see if the Registry should accept them for filing.

I note the terms of Rule 2.26 of the Federal Court Rules which states:

A Registrar may refuse to accept a document (including a document that would, if accepted become an originating application) if the Registrar is satisfied that the document is an abuse of the process of the Court or is frivolous or vexatious:

(a)    on the face of the document; or

(b)     by reference to any documents already filed or submitted for filing with the document.

In accordance with that rule, I refuse to accept the documents.

My reasons are as follows:

In my view the Documents, although voluminous do not set out with clarity and succinctness the grounds upon which you wish the Court to consider your application. In particular the Originating application and Statement of Claim are verbose and appear to include a series of submissions rather than succinctly identifying the grounds of review you wish to plead together with the specific jurisdictional basis that you say allows the Court to consider that particular ground or grounds of review.

For these reasons, in my view the application cannot possibly succeed and therefore the Documents are an abuse of the process of the Court and frivolous and vexatious.

The Documents are returned to you (with a hard copy of this letter).

13    The Deputy District Registrar’s letter dated 23 November 2016 (Third Decision), the subject of the Third Application, provided, as written:

I refer to your documents which were faxed to the Federal Court Registry on 18 November 2016

Your documents consisted of the following:

•    Application for Exemption from paying Court Fees - General

•    Originating Application for Relief under s 39B Judiciary Act

•    Statement of Claim dated 18 November 2016

•    Affidavit of Stephen Akpata deposed on 18 November 2016

On 14 November 2016, you faxed to the NSW Registry similar documents which you sought to fax file on 18 November 2016. On that date, Registrar Morgan considered your documents and refused to accept these for filing under Rule 2.26 of the Federal Court Rules and communicated his reasons to you. A copy of Registrar Morgan's letter is attached.

Having carefully reviewed the materials you faxed to the Registry on 18 November 2016, it is apparent that you are recycling the same grounds and evidence which you previously sought to file on 14 November 2016.

For the same reasons given to you by Registrar Morgan, pursuant to Rule 2.26 I refuse to accept your documents filed on 18 November 2016. In my view, the application cannot possibly succeed and are an abuse of process. They are also frivolous and vexatious.

Accordingly your faxed papers are returned to you.

legislative scheme

14    The Deputy District Registrars made their decisions under r 2.26 of the Rules which provides:

Refusal to accept document for filing—abuse of process or frivolous or vexatious documents

A Registrar may refuse to accept a document (including a document that would, if accepted, become an originating application) if the Registrar is satisfied that the document is an abuse of the process of the Court or is frivolous or vexatious:

(a)     on the face of the document; or

(b)     by reference to any documents already filed or submitted for filing with the document.

15    The Deputy District Registrars’ decisions are of an administrative character and susceptible to review pursuant to s 5(1) of the ADJR Act: see Satchithanantham v National Australia Bank Limited (2010) 268 ALR 222; [2010] FCAFC 47 at [49] (Satchithanantham Appeal Decision).

16    Section 5 of the ADJR Act sets out the grounds on which a person who is aggrieved by a decision to which that Act applies may apply to the Court for an order of review. It relevantly provides:

Applications for review of decisions

(1)     A person who is aggrieved by a decision to which this Act applies that is made after the commencement of this Act may apply to the Federal Court or the Federal Circuit Court for an order of review in respect of the decision on any one or more of the following grounds:

(a)     that a breach of the rules of natural justice occurred in connection with the making of the decision;

(b)     that procedures that were required by law to be observed in connection with the making of the decision were not observed;

(c)     that the person who purported to make the decision did not have jurisdiction to make the decision;

(d)     that the decision was not authorized by the enactment in pursuance of which it was purported to be made;

(e)     that the making of the decision was an improper exercise of the power conferred by the enactment in pursuance of which it was purported to be made;

(f)     that the decision involved an error of law, whether or not the error appears on the record of the decision;

(g)     that the decision was induced or affected by fraud;

(h)     that there was no evidence or other material to justify the making of the decision;

(j)     that the decision was otherwise contrary to law.

(2)     The reference in paragraph (1)(e) to an improper exercise of a power shall be construed as including a reference to:

(a)     taking an irrelevant consideration into account in the exercise of a power;

(b)     failing to take a relevant consideration into account in the exercise of a power;

(c)     an exercise of a power for a purpose other than a purpose for which the power is conferred;

(d)     an exercise of a discretionary power in bad faith;

(e)     an exercise of a personal discretionary power at the direction or behest of another person;

(f)     an exercise of a discretionary power in accordance with a rule or policy without regard to the merits of the particular case;

(g)     an exercise of a power that is so unreasonable that no reasonable person could have so exercised the power;

(h)     an exercise of a power in such a way that the result of the exercise of the power is uncertain; and

(j)     any other exercise of a power in a way that constitutes abuse of the power.

Sub-section 16(1) of the ADJR Act sets out the power of the Court to make orders on an application for an order of review in respect of a decision and relevantly provides:

16     Powers of the Federal Court and the Federal Circuit Court in respect of applications for order of review

(1)     On an application for an order of review in respect of a decision, the Federal Court or the Federal Circuit Court may, in its discretion, make all or any of the following orders:

(a)     an order quashing or setting aside the decision, or a part of the decision, with effect from the date of the order or from such earlier or later date as the court specifies;

(b)     an order referring the matter to which the decision relates to the person who made the decision for further consideration, subject to such directions as the court thinks fit;

(c)     an order declaring the rights of the parties in respect of any matter to which the decision relates;

(d)     an order directing any of the parties to do, or to refrain from doing, any act or thing the doing, or the refraining from the doing, of which the court considers necessary to do justice between the parties.

the applicant’s submissions

17    The applicant has filed submissions on which he relies in all three applications. It is convenient to set them out in full:

1.     I rely on the grounds Outlined in my Originating Applications, Affidavits and Statements of claims together,

2    The precedent in the Case of TANIORA V. Commonwealth and others and which is before your honor and was before your Honor and was before Justice Griffitts J. from your Honors Judgement and hopefully would still be heard in March 2017 if it has not been Withdrawn or discontinued before your Honor.

3    The material that I filled in the Federal Court in 2011 which were heard by two Justices of Federal Court in 2012.

It is respectfully Submitted that it is instructive to State that those materials filled in those Proceedings and heard by the Court are sufficiently precedent and Authority in this matter and that the documents before the courts forms a sufficient basis for the matters to be heard and determined by the Court properly in accordance with Chapter iii of the constitution.

Further, those materials revealed a challenge on constitutional grounds and its interpretation and therefore, should have been and must be heard by the Court.

It is Respectfully submitted that Australian Law does not tolerate the injustices done by the actions of the Deputy Registrars. Their actions and decisions represented a Fundamental Departure and breach of Applicable Principles of Australian Law. The Law provides relief.

Their actions and decisions was beyond Power, unreasonable, Illogical, Irrational and plainly unjust and was a denial of Procedural fairness and denial natural Justice.

(errors in original)

consideration

18    The issue that is before the Court for determination is whether each of the decision made by the Deputy District Registrars made contrary to any of the matters set out in s 5(1) of the ADJR Act. There is no reference to that Act in any of the applications. Notwithstanding that I have considered the grounds raised by the applicant by reference to s 5(1) of the ADJR Act where it is apparent that a relevant statutory ground is available. Having done so, in my opinion, the First Decision and the Second Decision were not made contrary to any of the matters set out in s 5(1) of the ADJR Act and the First and Second Applications must fail. However, the Third Decision was made contrary to s 5(1)(e), read with s 5(2)(a), of the ADJR Act. Thus the Third Application succeeds and orders should be made setting aside the Third Decision. My reasons follow.

19    The decision made in each case by the Deputy District Registrars was not beyond power or an abuse of power as alleged. This ground may be taken to be a reference to s 5(1)(c) and s 5(1)(e), read with s 5(2)(j), of the ADJR Act and an allegation that, in each case, the Deputy District Registrar had no jurisdiction to make his decision or improperly exercised his power. Rule 2.26 of the Rules clearly empowers a Registrar to refuse to accept a document if he or she is satisfied that the document is an abuse of process of the Court or it is frivolous or vexatious. The Deputy District Registrars were so satisfied and cannot be said to have acted contrary to ss 5(1)(c) or 5(1)(e), read with s 5(2)(j), of the ADJR Act.

20    The applicant was not denied procedural fairness in the making of the decision by the Deputy District Registrars. There was no breach of s 5(1)(a) of the ADJR Act. The Deputy District Registrars were not obliged to give the applicant an opportunity to regularise the documents as alleged, but were entitled to make their decisions as to whether to refuse to accept the Documents for filing in each case on the face of those documents or by reference to any documents already filed or submitted for filing with the documents. The applicant was not precluded from regularising the documents and attempting to file them again, which he did on two occasions.

21    The applicant further alleges that he was denied procedural fairness because the Deputy District Registrar in each case was more concerned with form over substance. I do not think that is the case. It is evident from their decisions that each of the Deputy District Registrars considered the substance of the documents that were provided for filing:

(1)    in the First Decision the Deputy District Registrar informed the applicant that the documents were inadequate and might otherwise be struck out because no details were provided of the basis upon which the applicant alleged that there were jurisdictional errors in the Minister’s decision which would entitle him to make a valid challenge under s 39B of the Judiciary Act 1903 (Cth);

(2)    in the Second Decision the Deputy District Registrar informed the applicant that the documents did not set out the grounds of his application with “clarity and succinctness” and that the originating application and statement of claim were verbose and included a series of submissions rather than “succinctly identifying the grounds of review” the applicant wished to plead; and

(3)    in the Third Decision the Deputy District Registrar informed the applicant that he had carefully reviewed the documents which the applicant wished to file on that occasion and that it was apparent that they were substantially the same as those the applicant attempted to file on 14 November 2016, which had previously been rejected. For the same reasons as were given in the Second Decision for refusing the earlier documents for filing, the Deputy District Registrar refused to accept these documents for filing.

22    In the Second and Third Applications the applicant alleges that he was denied procedural fairness because the Deputy District Registrar misapplied r 2.26 and “in particular what amounts to an abuse of the process of the Court and frivolous and vexatious (sic)”. The applicant does not provide any particulars as to why he says that is the case.

23    In Satchithanantham v National Australia Bank Limited (2009) 260 ALR 567; [2009] FCA 1171 (upheld on appeal: Satchithanantham Appeal Decision) Foster J considered the terms of O 46 r 7A(1) of the Federal Court Rules 1979 (Cth) which at the time provided that:

A Registrar may refuse to accept or issue a document (including any document which is, or if issued will become, an originating document) if the document appears to the Registrar on its face to be an abuse of the process of the court or to be frivolous or vexatious.

24    In that case Foster J considered and rejected a submission put by the applicant, whose notice of appeal had not been accepted for filing, that there was no power in the Registrar to deny him his right of appeal because all appeals must be heard on their merits comprising a bench of three judges of the Court: at [36]-[37]. His Honour then considered whether there was any ground under s 5(1) of the ADJR Act which could support the relief claimed by the applicant in his application but was unable to identify any such ground. At [41] Foster J referred to the judgment of Sackville J in Paramasivam v Randwick City Council [2005] FCA 369 (Paramasivam):

In the course of his reasons for judgment in Paramasivam [2005] FCA 369, Sackville J discussed the meaning of the expression on its face when used in O 46 r 7A. At [45], his Honour said:

The expression “on the face”, according to Butterworths Australian Legal Dictionary refers to

“the immediate and apparent meaning of something written; the meaning to be given to a word or phrase upon first glance; the literal meaning as opposed to any subjective meaning that may be given by inference or extrapolation”.

There is little doubt that if a Registrar refuses to accept a document for filing or seeks the direction of a Judge in relation to that document on the basis of the person’s litigious history (unless perhaps the history is revealed on the face of the document itself), the Registrar has not confined himself or herself to a consideration of the relevant document “on its face”.

25    At [43] Foster J continued:

43    … The language of O 46 r 7A(1) requires the Registrar to form the opinion that the document presented for filing “on its face” is “an abuse of the process of the court or is frivolous or vexatious” (the words are “if the document appears to the Registrar … to be”) (Emphasis added). That opinion must be honestly and actually formed. It is the appearance to the mind of the Registrar of the requisite circumstances which enlivens the power to reject a document for filing. The Registrar must form that opinion reasonably (Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507 at [73] (p 532) and the cases referred to in footnote 52 on p 532 of the report). This latter requirement must not be used as a back door means of carrying out a merits review of the relevant decision.

26    While the form of r 2.26 differs slightly from the former O 46 r 7A, the observations of Foster J equally apply here. That is, the Deputy District Registrar must be satisfied that the document is an abuse of the process of the Court or is frivolous or vexatious on its face or by reference to any documents already filed or submitted for filing with the document and must form that opinion actually and honestly. There is no evidence before me upon which I could find that the Deputy District Registrars did not actually and honestly form the opinions expressed in the Second Decision and the Third Decision.

27    Nor was there an obligation on the part of the Deputy District Registrars to consider earlier proceedings brought by the applicant in this Court. The exercise of the power given to the Deputy District Registrar by r 2.26 is contingent upon his being satisfied that the documents are an abuse of the Court’s process or are frivolous or vexatious on the face of those documents or by reference to any document already filed or submitted for filing with the document. In Shaw v Buljan [2016] FCA 829 (Shaw) Charlesworth J considered an application for review of a Registrar’s decision made pursuant to r 2.26 to refuse to accept for filing an interlocutory application. Her Honour found that the Registrar in exercising her power under the rule was not limited to only having regard to the document submitted on its face and those submitted for filing with the proposed interlocutory application but could have regard to the notice of appeal, which was a document already filed in the same proceeding. Her Honour considered the construction of r 2.26(b), observing at [55] that:

… The context, and purpose of r 2.26 support a construction that permits the Registrar to refer to any documents already filed that may legitimately inform an assessment of whether a document submitted for filing is an abuse of process, or is frivolous or vexatious, including the very kind of assessment the Deputy Registrar made in the present case.

28    The 2011 Proceeding and the other proceedings referred to by the applicant could not legitimately inform an assessment of whether the documents submitted for filing were an abuse of process or frivolous or vexatious. While they were already filed, they were filed in different proceedings.

29    The Third Application alleges that the Deputy District Registrar’s decision was an abuse of power, irrational, illogical, unreasonable and plainly unjust and lacked an intelligible justification. A submission to that effect is also included in the applicant’s submission filed in support of all three applications. By this submission the applicant seems to contend that the decisions were legally unreasonable such that, contrary to ss 5(1)(e) and 5(2)(g) of the ADJR Act, they were an improper exercise of the power conferred by r 2.26 in that the exercise of the power was so unreasonable that no reasonable person could have so exercised the power.

30    An issue arises as to the test to be applied in determining legal unreasonableness in the context of s 5(2)(g), which appears in its terms to adopt the words of the test espoused in Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223. The common law principles of legal unreasonableness have been considered by the High Court subsequent to the enactment of s 5(2)(g) in Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 (Li), where Hayne, Kiefel and Bell JJ said at 364:

Lord Greene MR’s oft-quoted formulation of unreasonableness in Wednesbury has been criticised for “circularity and vagueness”, as have subsequent attempts to clarify it. However, as has been noted, Wednesbury is not the starting point for the standard of reasonableness, nor should it be considered the end point. The legal standard of unreasonableness should not be considered as limited to what is in effect an irrational, if not bizarre, decision – which is to say one that is so unreasonable that no reasonable person could have arrived at it – nor should Lord Greene MR be taken to have limited unreasonableness in this way in his judgment in Wednesbury. This aspect of his Lordship’s judgment may more sensibly be taken to recognise that an inference of unreasonableness may in some cases be objectively drawn even where a particular error in reasoning cannot be identified.

(citations omitted)

31    Seemingly, the statutory grounds of review in the ADJR Act were intended to reflect the common law grounds of judicial review. The Second Reading Speech to the Administrative Decisions (Judicial Review) Bill 1977 (Cth) (ADJR Bill) provides:

The grounds of review are set out in clauses 5 and 6 of the Bill … The grounds of review specified are those that have been developed by the courts. To avoid stultifying further development of the law by the Federal Court of Australia, each of clauses 5 and 6 contains the comprehensive ground that the decision made or proposed to be made would be otherwise contrary to law.

32    The Explanatory Memorandum to the ADJR Bill further noted at [19] and [22]-[23]:

19    The grounds of review are intended to comprehend all grounds on which an injunction or a writ of mandamus, certiorari or prohibition, or a declaration might be obtained under the existing law. The grounds are in some cases, and in other cases may be, more extensive than those on which relief can be obtained under the existing law …

…

22    Particular comments on particular grounds of review are made below:

    …

(e)    That the making of the decision was an improper exercise of power conferred by the enactment in pursuance of which it was purported to be made. What is an improper exercise of power is spelt out in sub-clause 5(2).

…

23    Sub-clause 5(2) spells out what is intended by an improper exercise of power. The sub-clause is intended to set out the existing law. Paragraph (j) is open-ended to allow for judicial development of the law.

(original emphasis)

33    Taken together, the Second Reading Speech and Explanatory Memorandum to the ADJR Bill reflect a legislative intention that the statutory grounds in s 5 were to set out the then existing law, but not to hinder the further development of those and other, new grounds of judicial review. In Kioa v West (1985) 159 CLR 550 (Kioa) Mason J, as his Honour then was, said in the same vein at 576:

The statutory grounds of review enumerated in s. 5(1) are not new – they are a reflection in summary form of the grounds on which administrative decisions are susceptible to challenge at common law. The section is therefore to be read in light of the common law and it should not be understood as working a challenge to common law grounds of review, except in so far as the language of the section requires it: see, for example, s. 5(1)(f). It is in this respect that s. 5(1) makes every decision to which it applies subject to review on the grounds stated and in so doing it may give a number of grounds a wider reach than they would have at common law. But it is not the primary object of the section to amend or alter the common law content of the various grounds.

(emphasis added)

34    Before Li, the High Court (Gummow and Hayne JJ) acknowledged in East Australian Pipeline Pty Ltd v ACCC (2007) 233 CLR 229 that s 5(2)(g) did reflect the common law. That case concerned review of a decision of the Australian Competition and Consumer Commission under an available statutory ground, among other grounds, that the exercise of the Commission’s discretion “was incorrect or was unreasonable having regard to all the circumstances”. At 250 Gummow and Hayne JJ said that:

… The additional use of the term “unreasonable”, in the sense of being “so unreasonable that no reasonable person could have so exercised the power”, has been developed in the case law over the last sixty years as an independent ground of judicial review and is embodied in the AD(JR) Act (s 5(1)(e), (2)(g)). Some account of that development was given by McHugh and Gummow JJ in Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002. …

(citations omitted)

35    The question of whether s 5(2)(g) continues to align with the common law principles of legal unreasonableness after Li has only been the subject of limited consideration in this Court. In Shaw Charlesworth J expressed the view at [87] that:

87    The High Court in Li was concerned with the nature and boundaries of legal unreasonableness as a ground for judicial review in proceedings invoking a Court’s jurisdiction equivalent to that conferred by the High Court under s 75(v) of the Constitution. Although the words of s 5(2)(g) of the Act appear to adopt a test for legal unreasonableness that is more stringent than that explained by the High Court in Li, the statutory provision should, in my opinion, be construed broadly as referring to the same ground for judicial review identified by Gageler J (at 375 [105, [106]) as being, “deeply rooted in the common law”:

[105]    … Review by a court of the reasonableness of a decision made by another repository of power ‘is concerned mostly with the existence of justification, transparency and intelligibility within the decision-making process’ but also with ‘whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law’.

[106]    The label ‘Wednesbury unreasonableness’ indicates ‘the special standard of unreasonableness which has become the criterion for judicial review of administrative discretion’. Expression of the Wednesbury unreasonableness standard in terms of an action or decision that no reasonable repository of power could have taken ‘attempts, albeit imperfectly, to convey the point that judges should not lightly interfere with official decisions on this ground’.

(citations omitted)

36    In Emmett v McCormack [2015] FCA 826 Yates J appears to have accepted that the modern test for unreasonableness at common law and the test contained in the ADJR Act are different, if overlapping. In that case the applicant sought judicial review of a decision of the Parliamentary Secretary to the Minister for Finance pursuant to the ADJR Act and s 39B of the Judiciary Act 1903 (Cth). His Honour was therefore required to consider whether the Secretary’s decision was legally unreasonable under s 5(2)(g) and at common law. In doing so his Honour said at [59]:

In order to succeed on this ground it is necessary for the applicant to establish that the respondent’s decision was not reasonable according to the common law or, more specifically, was unreasonable according to the standard enshrined in s 5(2)(g) of the AD(JR) Act.

(emphasis added)

37    His Honour went on to make separate findings on each standard of legal unreasonableness at [74]:

I am not persuaded that the respondent’s reasoning in relation to the decision, or the decision itself, manifests a lack of reasonableness in the relevant legal sense. While I accept that minds may well differ about the merits of the respondent’s decision, I am not persuaded that the decision is arbitrary, capricious, perverse, lacking in common sense or unintelligible – to use some of the expressions employed in the cases to denote unreasonableness in the relevant sense. Further, I am not persuaded that the decision is so unreasonable that no reasonable decision-maker could have reached it. …

38    In BMF16 v Minister for Immigration and Border Protection [2016] FCA 1530 the applicants sought to rely upon the principles enunciated in Li in support of their submission that an exercise of power by the Minister’s delegate concerning their applications for citizenship was legally unreasonable. The applicant’s reliance on those principles is reflected in the findings of Bromberg J at [143]-[144], including that:

… For the delegate to have made a decision to refuse F’s application without making any attempt to clarify whether F sought an opportunity to be heard amounted to a failure to provide F with a reasonable opportunity to be heard: Li at [19]–[21] (French CJ); and Kaur at [142] (Mortimer J). For those reasons, I am satisfied that F’s refusal decision is affected by jurisdictional error and that the grounds of review in s 5(1)(a) and (2)(g) of the ADJR Act are made out.

39    In CKI Utilities Development Pty Ltd v Australian Energy Regulator [2016] FCA 17 (CKI Utilities Development) Mansfield J declined to express a view on the issue, finding in the circumstances of that case at [54] that:

… Nor is it necessary to explore the extent to which the decision of the High Court in Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 may have broadened the test of unreasonableness, giving rise to error under s 5(2)(g) of the ADJR Act. I do not consider that, on any conventional or contemporary reasons of unreasonableness, the ground is made out.

40    I find myself in a similar position to Mansfield J in CKI Utilities Development in that I too do not need to examine the scope of s 5(2)(g) of the ADJR Act. This is because, in my opinion, the applicant’s contention that the Deputy District Registrars’ decisions were legally unreasonable is unsustainable whichever standard of legal unreasonableness is applied. That is, the Deputy District Registrars’ decisions cannot be characterised as unreasonable in the sense that they are so unreasonable that no reasonable person could have arrived at the decision, nor in the more expansive sense contemplated by Li.

41    The decisions of the Deputy District Registrars cannot be said to be unreasonable. They are not so unreasonable that no reasonable person could have so exercised the power. Nor do I consider that they can be characterised as “sufficiently lacking rational foundation, or an evident or intelligible justification, or … being plainly unjust, arbitrary, capricious, or lacking common sense having regard to the terms, scope and purpose of the statutory source of the power, such that it cannot be said to be within the range of possible lawful outcomes as an exercise of that power”: Minister for Immigration and Border Protection v Stretton (2016) 237 FCR 1 at [11] (per Allsop CJ). In each case the Deputy District Registrar reasonably exercised the power conferred by r 2.26 which authorised the making of a decision as to whether to accept documents for filing.

42    Further, in the case of the First Decision and the Second Decision the Deputy District Registrar made his decision having regard to the documents the applicant proposed to file as r 2.26 required him to do. In each case the outcome of the exercise of power was one contemplated by the rule and was reached after proper consideration was given to the documents proposed to be filed.

43    The Third Decision falls into a different category. Although not raised as a ground by the applicant, who is not legally represented, in my opinion the Third Decision was an improper exercise of the power conferred by r 2.26 of the Rules because the Deputy District Registrar took an irrelevant consideration into account in exercising the power, contrary to ss 5(1)(e) and 5(2)(a) of the ADJR Act. In exercising the power under r 2.26 a Registrar must reach his or her state of satisfaction based on the face of the document or by reference to any document already filed or submitted for filing with the document. In making the Third Decision the Deputy District Registrar had regard to the originating application and statement of claim the subject of the Second Decision. In taking those documents into account he did not act conformably with r 2.26 and took into account an irrelevant consideration. As Sackville J said in Paramasivam at [47] in relation to the former O 46 r 7A:

The Registrar’s power to seek the direction of a Judge is thus conditional on the Registrar forming the opinion that the relevant document on its face is an abuse of the process of the Court or is frivolous or vexatious. It would seem to follow that if an applicant can establish that a Registrar who sought the direction of a Judge in relation to a document presented to the Registry:

•    did not form the requisite opinion; or

•    although forming an opinion that the document was an abuse of process, did so after taking into account matters other than the contents of the document itself,

it is at least arguable that the Registrar’s decision to seek the direction is amenable to judicial review under the ADJR Act. In the first case, the Registrar’s decision would not seem to have been authorised by the relevant enactment (that is, the FCR) and thus the applicant could invoke s 5(1)(d) of the ADJR Act (providing a ground of review where the decision was not authorised by the enactment). In the second case an irrelevant consideration would have been taken into account and thus the applicant could invoke s 5(1)(e) of the ADJR Act (see s 5(2)(a)).

(original emphasis)

44    Although the form of r 2.26 has changed the principle enunciated by Sackville J applies equally here. That is, the Deputy District Registrar’s decision not to accept the documents for filing was made after taking into account matters not permitted by r 2.26. He went beyond considering the documents on their face, any document already filed or any document submitted for filing with the document. For that reason the Third Decision was made in contravention of s 5(1) of the ADJR Act.

CONCLUSION

45    I will make orders dismissing the First Application and the Second Application.

46    For the reasons set out at [43] to [44] above the Third Decision was an improper exercise of the power conferred by the r 2.26 of the Rules because the Deputy District Registrar took an irrelevant consideration into account in the exercise of the power. I turn then to the question of relief. The applicant sought the orders set out at [7] above, including an order that “[t]he deputy registrar be ordered and directed to accept the documents for filing and should file the documents”. It is not appropriate that I make such an order. Rather, I will make an order setting aside the Third Decision and an order referring the documents the subject of the Third Decision to the Registrar (as defined in the Rules), not being the Deputy District Registrar who made the Third Decision, for further consideration.

47    As the respondents in the First Application and in the Third Application have filed submitting notices and the respondent in the Second Application has not appeared I shall make no order as to costs.

Associate:

Dated:    28 March 2017

appendix 1

Originating application for relief under section 39B Judiciary Act 1903

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.    A declaration that my detention at the North West Point Christmas Island Immigration Detention Centre from 13 March 2015 to 28 August 2015 by the Commonwealth and the Minister for Immigration and Border Protection is and was unlawful.

2.    A declaration that my detention at the North West Point Christmas Island Immigration Detention Centre from 13 March 2015 to 28 August 2015 is and was false imprisonment and that I was falsely imprisoned as my freedom of physical movement was, restrained without lawful justification by the Commonwealth.

3.    A declaration that my detention and continued detention at Maribyrnong Immigration Detention Centre by the Commonwealth from 29 August 2015 March 2016 is unlawful.

4.    A declaration that my detention and continued detention at Maribyrnong Immigration Detention Centre in Melbourne Victoria by the Commonwealth from 29 August 2015 to the present in November 2016 and continuing is false imprisonment and that I have been falsely imprisoned as my freedom of physical movement has been and is and continued to be restrained without lawful justification.

5.    The decision and continued decisions of the Commonwealth to detain and continue to detain me at North West Point, Christmas Island Immigration Detention Center (CIIDC) by the Commonwealth and the Minister for Immigration and Border Protection from 13 March 2015 to 28 August 2015 is a decision(s) that and which amount to jurisdictional error. In that, particularly, as the decision(s) was and were and continued to made without regards and a failure to take into account and a failure to have regards to the legal consequences of my continued detention at CIIDC and or any detention Centre at all. This is legally unreasonable, irrational and illogical.

6.    The decision and continued decisions of the Commonwealth to detain and continue to detain me at Maribyrnong Immigration Detention Centre by the Commonwealth and the Minister for Immigration and Border Protection is a decision(s) that and which amount to jurisdictional error. In that, particularly, as the decision(s) was and were and continued to made without regards and a failure to take into account and a failure to have regards to the legal consequences of my continued detention at MIDC and or any detention Centre at all. This is legally unreasonable, irrational and illogical.

7.    The Commonwealth was Negligent and continued to be and acting a very serious negligent manner.

8.    A declaration that the Commonwealth breached its non-delegable duty of care to me when the Commonwealth detained me at both CIIDC and MIDC and continues to breach its non-delegable duty of care to me.

9.    A declaration that the Commonwealth and the Minister and the Secretary and his Department failed to comply with the non-delegable duty of care, and as a consequence:

10.    A declaration that as a consequence: I suffered a psychiatry Injury and Psychological Injury, and Mental Injury.

11.    I continue to suffer from a psychiatry Injury and Psychological Injury, and Mental Injury

12.    A declaration that the Commonwealth and the Minister and the Secretary and his Department could reasonably have expected and should have and ought to have known that I will suffer a psychiatry Injury and Psychological Injury, and Mental Injury would continue to suffer from a psychiatry Injury and Psychological Injury, and Mental Injury as a consequence and result of its negligence and failure and breach of its non-delegable duty of care to me.

13.    The writ or orders in the nature of Habeas corpus releasing me from detention.

14.    The writ or orders in the nature of Habeas corpus releasing from MIDC.

15.    Damages, including aggravated and exemplary damages and Compensation for unlawful detention and false imprisonment.

16.    Damages, including aggravated and exemplary damages and Compensation for the psychiatry Injury and Psychological Injury, and Mental Injury that I suffered and continue to suffer as a consequence and result of its negligence and failure and breach of its non-delegable duty of care to me.

Claim for interlocutory relief

The Applicant also claims interlocutory relief.

1.    The Commonwealth be ordered and directed to produce every document relating to my detention from 12 March 2015 to and including November 2016, incorporating all the psychological assessments and Reports from April 2009 to present, complaints in regards to my treatment by Serco Immigration Service officers, staffs, cleaners, Emergency Response Team officers (ERT) its agents, the detention Service providers at Christmas Island Immigration Detention Center from 13 March 2015 to 28 August 2015, file notes and clinical entries and memo by the officers of the Commonwealth and International Health and Medical Services (IHMS), its detention health providers and sub contractors

2.    The Commonwealth be ordered and directed to produce every document relating to my detention from 29 August 2015 to present and including November 2016, incorporating all the psychological assessments and Reports from April 2009 to present, complaints in regards to my treatment by Serco Immigration Service officers, staffs, cleaners, Emergency Response Team officers (ERT) its agents, the detention Service providers at Christmas Island Immigration Detention Center from 29 August 2015 to present file notes and clinical entries and memo by the officers of the Commonwealth and International Health and Medical Services (IHMS), its detention health providers and sub contractors.

3.    The Commonwealth be ordered and directed to produce any investigations and or reports of such investigation and any actions it took in regards to its non-delegable duty of care to me since 13 March 2015 to November 2016 and continuing in regards to myself.

4.    Leave granted to file amended application under section 39B of the Judiciary Act 1903 with particulars, affidavits, and amended and supplementary Statement of Claims and any documents in the future.

5.    Any other interlocutory orders that the Court deems fit.

Representative action

The Applicant sues in a representative capacity.

Statement of Claim

1.    The first Respondent the Commonwealth of Australia is the capable of being sued.

2.    The second and third Respondents are entities and bodies and officers of the Commonwealth and are capable of being sued.

3.    The Forth Respondent Serco is a body corporate pursuant to law and is capable of being sued.

4.    I am a protection Visa Applicant.

5.    At all material times since 02 December 2011, I have been detained by the Commonwealth and the Minister for Immigration and Border Protection in Immigration detention Centre(s)

6.    CIIDC: At all material times from 13 March 2015 to 28 March 2015, I was detained by the Commonwealth and the Minister for Immigration and Border Protection at its North West Point Christmas Island Immigration Detention Centre in Christmas Island.

7.    The Commonwealth, and the Minister for Immigration and Border Protection were negligent and breached their and its non-delegable duty of care to me in that the the Commonwealth is was in breach of its own standards of care to me.

8.    My detention at the North West Point Christmas Island Immigration Detention Centre from 13 March 2015 to 28 August 2015 by the Commonwealth and the Minister for Immigration and Border Protection is and was unlawful.

9.    My detention at the North West Point Christmas Island Immigration Detention Center from 13 March 2015 to 28 August 2015 is and was false imprisonment and that I was falsely imprisoned as my freedom of physical movement was, restrained without lawful justification by the Commonwealth.

10.    The Commonwealth was Negligent and continued to be negligent.

11.    The Commonwealth breached its non-delegable duty of care to me when the Commonwealth detained me at both CIIDC and continued to breach its non-delegable duty of care to me through out my detention at CIIDC.

12.    I suffered a psychiatry Injury and Psychological Injury, and Mental Injury.

13.    Throughout the course and at all times of my detention at the North West Point Christmas Island Immigration Detention Center in Christmas Island by the Commonwealth and the Minister for Immigration and Border Protection, the respondents, from 13 March 2015 to 28 August 2015, I was subjected to discrimination. segregation, abuse, assaulted, vilification and being vilified and intimidated and subjected to bullying by Serco Immigration Service officers, staffs, cleaners, Emergency Response Team officers (ERT) its agents, Christmas Island Detention Center staff and other detainees on a regular and consistent basis.

14.    By reason of the negligence and breach of the duty of care by the respondents my unlawful detention and false imprisonment at the North West Point, Immigration Detention Center In Christmas Island from 13 March 2015 to and including 28 August 2015, I suffered a psychiatry Injury and Psychological Injury, and an incapacitating Mental Injury.

15.    I continue to suffer from a psychiatry Injury and Psychological Injury, and an incapacitating Mental Injury

16.    Further, by reason of my detention at the North West Point Christmas Island Immigration Detention Center in Christmas Island by the Commonwealth and the Minister for Immigration and Border Protection, the respondents, from 13 March 2015 to 28 August 2015, and what I was subjected to in that I was subjected to discrimination, segregation, abuse, assaulted, vilification and being vilified and intimidated and subjected to bullying by Serco Immigration Service officers, staffs, cleaners, Emergency Response Team officers (ERT) its agents, Christmas Island Detention Center staff and other detainees on a regular and consistent basis, I suffered a psychiatry Injury and Psychological Injury, and an incapacitating Mental Injury and continue to surfer from that injury.

17.    MARIBYRNONG MIDC

18.    At all material times from 29 August 2015 to now in November 2016 and continuing, I was detained and continued to be detained by the Commonwealth and the Minister for Immigration and Border Protection at Maribyrnong Immigration Detention Centre in Melbourne Victoria.

19.    The Commonwealth, and the Minister for Immigration and Border Protection were have and continue to be negligent and breached their and its non-delegable duty of care to me in that the the Commonwealth is and continues to breach its own standards of care to me.

20.    My detention at the Maribyrnong Immigration Detention Center (MIDC) in Melbourne Victoria. Immigration Detention Center from 29 August 2015 by the Commonwealth and the Minister for Immigration and Border Protection is and was and continue to be unlawful.

21.    My detention at the Maribyrnong Immigration Detention Center (MIDC) from 29 August 2015 and until present is and was and continues to be false imprisonment and that I was and I am being falsely imprisoned as my freedom of physical movement was, restrained without lawful justification by the Commonwealth.

22.    The Commonwealth was and is and continues to be Negligent and continued to be negligent.

23.    The Commonwealth breached its non-delegable duty of care to me when the Commonwealth detained me at both MIDC and continued to breach its non-delegable duty of care to me through out my detention at MIDC.

24.    As a consequence and result, I suffered a psychiatry Injury and Psychological Injury, and Mental Injury.

25.    Throughout the course and at all times of my detention at the Maribyrnong Immigration Detention Center (MIDC) by the Commonwealth and the Minister for Immigration and Border Protection, the respondents, from 29 August 2015 and until now and continuing, I have been subjected to discrimination, segregation, abuse, assaulted, vilification and being vilified and intimidated and subjected to bullying by Serco Immigration Service officers, staffs, Emergency Response Team officers (ERT) its agents, and by other detainees on a regular and consistent basis.

26.    By reason of the negligence and breach of the duty of care by the respondents my unlawful detention and false imprisonment at the Maribyrnong Immigration Detention Center (MIDC), from 29 August 2015 until present and ongoing, I suffered a psychiatry Injury and Psychological Injury, and an incapacitating Mental Injury.

27.    I continue to suffer from a psychiatry Injury and Psychological Injury, and an incapacitating Mental Injury

28.    Further, by reason of my detention at the Maribyrnong Immigration Detention Center (MIDC) by the Commonwealth and the Minister for Immigration and Border Protection, the respondents, from 29 August 2015 until now and continuing and what I have been subjected to in that I have been and continue to be subjected to discrimination, segregation, abuse, assaulted, vilification and being vilified and intimidated and subjected to bullying by Serco Immigration Service officers, staffs, Emergency Response Team officers (ERT) its agents, Christmas Island Detention Center staff and other detainees on a regular and consistent basis, I suffered a psychiatry Injury and Psychological Injury, and an incapacitating Mental Injury and continue to surfer from that injury.

29.    PARTICULARS OF INJURY

30.    Psychiatry Injury, and Psychological Injury, and an incapacitating Mental Injury.

31.    Alternatively, Psychiatry Injury, and Psychological Injury, and acceleration, exacerbation of an incapacitating Mental Injury and on going.

32.    Pain and suffering and other condition as a result.

33.    The injuries occurred by reason of the negligence of the Respondents, its officers and delegates and its agents, and or by reason of the breach by the first and second Respondents duty of care owed to as a detainee under the Commonwealth's detention and Immigration Detention.

34.    PARTICULARS OF NEGLIGENCE AND/ OR BREACH OF DUTY OF CARE

35.    Requiring, permitting or allowing his delegates, officers and agents to detain and continue to detain me at CIIDC. from 13 March 2015 to 28 August 2015, when it knew and ought to have known that it was unsafe to do so and and that it was unlawful to continue to detain me at CIIDC and that it was false imprisonment.

36.    Requiring, permitting or allowing his delegates, officers and agents to detain and continue to detain me at CIIDC, from 13 March 2015 to 28 August 2015, when it knew and ought to have known that it was unsafe to do so and and that it was unlawful to continue to detain me at CIIDC and that it was false imprisonment in that I was subjected to discrimination, segregation, abuse, assaulted, vilification and being vilified and intimidated and subjected to bullying by Serco Immigration Service officers, staffs, cleaners, Emergency Response Team officers (ERT) its agents, Christmas Island Detention Center staff and other detainees on a regular and consistent basis.

37.    Requiring, permitting or allowing his delegates, officers and agents to detain and continue to detain me at MIDC, from 29 August 2015, when it knew and ought to have known that it was and is and continues to be unsafe to do so and and that it was unlawful to continue to detain me at MIDC and that it was and is and continues be false imprisonment in that I was subjected to discrimination, segregation, abuse, assaulted, vilification and being vilified and intimidated and subjected to bullying by Serco Immigration Service officers, staffs, cleaners, Emergency Response Team officers (ERT) its agents, and other detainees on a regular and consistent basis.

38.    Failing to provide me with any or any adequate alternative place of detention and release from detention or detention in the community given the Commonwealth and the Minister is and was aware of what was happening to me and continues to happen to me.

39.    Failing adequately or at all to supervise and monitor and bring or stop the illegal and unlawful activities of its officers, delegates and agents and the negligence and it breach of duty of care to me.

40.    Requiring me to be detained and continued to be detained at both CIIDC and MIDC, putting my life in danger and coursing me irreparable harm and severe Psychiatry Injury and Psychological Injury, and an incapacitating Mental Injury.

41.    Failing to release me from harm's way by relocating me VIDC or Alternative Place of Detention in an APOD given the situation and or to detain me in the community in community detention.

42.    Requiring me to be detained and continued to be detained at CIIDC and MIDC, which has caused me harm and is and are unsafe. And a danger to my life.

43.    Failing to undertake any or any adequate investigations of the complaints that I made and the suitability of my continued detention at both CIIDC MIDC given the situations.

44.    Failing to take all reasonable care to reduce the risks mental harm to me associated with what I was subjected to in CIIDC and MIDC and ongoing given its non-delegable duty of care that it owed to me.

45.    Failing to provide me with a clinical psychologists for my mental injury.

46.    Failing to comply with its non-delegable duty of care owed to me.

47.    Failing to release me from unlawful detention.

48.    Failing to release me from false imprisonment.

49.    Failing to act according to law and acting unreasonably, irrationally and illogically at all times since detaining from 13 March 2015 until presently now and ongoing.

appendix 2

Originating application for relief under section 39B Judiciary Act 1903

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.    A declaration pursuant to section 21 of the Federal Court of Australia Act 1976, (Cth), the decision and continued decisions of the Commonwealth to detain and continue to detain me under section 189 of the Migration Act 1958 at Maribyrnong Immigration Detention Centre and any detention centers by the Commonwealth and the Minister for Immigration and Border Protection is a decision(s), and are decisions that and which amount to jurisdictional error. On the basis and grounds that: The respondents applied the wrong tests, and acted upon a mistaken assumptions and opinion as to and regarding the existence of certain facts under the Migration Act 1958 to detain and continue to detain me contrary to the provisions of sections 189 and 196 of the Migration Act 1958 and in breach of its obligation under the Migration Act 1958 as the decisions and continuing decisions to detain me in Immigration detention in MIDC, is affecting me and has affected me and continues to affect my ability to prepare, and conduct, and research for and meaningfully and properly prosecute my visa(s) Applications and matters and relating to my migration status under the Migration Act 1958. Further in that, and the respondents failed take into account and consider the impact that I suffered as a consequence of its breach of duty of care to me and ignored and failed to take into account the potential impact of the treatment of what I suffered and was subjected to Cruel, Inhumane or Degrading Treatment, abused, brutalised, Discriminated against, bullied, Intimidated, and harassed, Abused on a daily and consistent basis contrary to the provisions pursuant to section 189 of Migration Act 1958, and is an unreasonable interference with my political communication and free speech under the Australian Constitution and is unconstitutional.

2.    A declaration pursuant to section 21 of the Federal Court of Australia Act 1976, (Cth), the Minister and the Commonwealth can not make decisions under the Migration Act contrary to the Constitution of Australia. The decision(s) and continued decisions of the Commonwealth to detain and continue to detain me under section 189 of the Migration Act 1958 at Maribyrnong Immigration Detention Centre by the Commonwealth and the Minister for Immigration and Border Protection is and is, and are, and were decision(s) beyond power and the respondents failed take into account and consider the impact that I suffered as a consequence of its breach of duty of care to me and ignored and failed to take into account the potential impact of the treatment of what I suffered at the hands of its officers and agents and it is unconstitutional.

3.    A declaration pursuant to section 21 of the Federal Court of Australia Act 1976, (Cth), the decision and continued decisions of the Commonwealth to detain and continue to detain me under section 189 of the Migration Act 1958, and In that, particularly, as the decision(s) was and were and continued to be made without regards to and a failure to take into account and a failure to have regards to the Commonwealth's non-delegable duty of care to take care and to take and ensure all reasonable care to ensure my personal safety and that of my mental, psychiatric, and psychological health and safety and the failure by the Commonwealth and the Minister to have regard and take into account the legal consequences of my continued detention at MIDC and or any detention Centre at all. This is legally unreasonable, irrational and illogical beyond power and unconstitutional

4.    A declaration pursuant to section 21 of the Federal Court of Australia Act 1976, (Cth) that my detention under section 189 of the Migration Act 1958 and continued detention at Maribyrnong Immigration Detention Centre by the Commonwealth from 29 August 2015 to November 2016 and continuing is unlawful. Further, It did and has and is and continues to affect my ability to prepare, and conduct, and research for and meaningfully and properly prosecute my visa(s) Applications and matters relating to and regarding my migration status in accordance with the applicable law. It is unconstitutional.

5.    A declaration pursuant to section 21 of the Federal Court of Australia Act 1976, (Cth) that my detention under section 189 of the Migration Act 1958 and continued detention at Maribyrnong Immigration Detention Centre by the Commonwealth from 29 August 2015 to November 2016 and continuing was and is unlawful. It was and is not authorised by the Migration Act including sections 189 and 196 of the Act and it is unconstitutional.

6.    A declaration pursuant to section 21 of the Federal Court of Australia Act 1976, (Cth) that my detention under section 189 of the Migration Act 1958 and continued detention at Maribyrnong Immigration Detention Centre by the Commonwealth from 29 August 2015 to November 2016 and continuing was and is unlawful. It was and is not authorised by the Migration Act including sections 189 and 196 of the Act and it is unconstitutional. The Commonwealth is liable for the Tort of Negligence, in that the Commonwealth and the respondents owed me a non-delegable duty of care as a detainee. The Commonwealth owed me a duty to ensure my personal safety physically and my psychiatric safety and psychologically and mental safety at all times whilst I am detained at MIDC. The respondents breached that duty and continues to breach its duty of care to me by its failure and continued failure to among other things ensure that my life is not put at risk at the hands of his officers and agents and other detainees physically, and to ensure my psychological safety. As a consequence and result of that failure and breach by the respondents I suffered a psychiatric Injury in that:

7.    Since my detention at MIDC: from 29 August 2015 until now in November 2016, I have been subjected to Discrimination; Segregation, Abuse, Vilification; Intimidation; and Bullying by the respondents officers, and agents and at the hands of other detainees.

8.    The Commonwealth and the respondents should have known and ought to have known that: I will be harmed both physically, psychologically and emotionally in that as a vulnerable detainee and that: I Will be harmed by way of recrimination as a vulnerable detainee who acted as a whistle blower against both Serco Immigration Services Managers, Serco Emergency Team Unit staffs, Serco Cleaners, and Serco staff members, and that my continued detention at MIDC was not authorised by the Migration Act 1958 and including sections 189 and 196 of the Act 1958 and it unconstitutional.

9.    A declaration pursuant to section 21 of the Federal Court of Australia Act 1976, (Cth) that my detention under section 189 of the Migration Act 1958 and continued detention at Maribyrnong Immigration Detention Centre by the Commonwealth from 29 August 2015 to November 2016 and continuing is unlawful, and is an unreasonable interference with my political communication and free speech under the Australian Constitution and is unconstitutional. It has and is and continues to affect my ability to prepare, and conduct, and research for and meaningfully and properly prosecute my visa(s) Applications and matters and relating to my migration status in accordance with the applicable law and unconstitutional.

10.    A declaration pursuant to section 21 of the Federal Court of Australia Act 1976, (Cth) that my detention and continued detention under section 189 of the Migration Act 1958 at Maribyrnong Immigration Detention Centre MIDC in Melbourne Victoria by the Commonwealth from 29 August 2015 to the present in November 2016 and continuing is false imprisonment and that I have been falsely imprisoned as my freedom of physical movement has been and is and continued to be restrained without lawful justification, and is an unreasonable interference with my political communication and free speech under the Australian Constitution and is unconstitutional.

11.    A declaration pursuant to section 21 of the Federal Court of Australia Act 1976, (Cth) that my detention under section 189 of the Migration Act 1958 and continued detention at Maribyrnong Immigration Detention Centre by the Commonwealth from 29 August 2015 to November 2016 and continuing was and is unlawful. It was not and is not authorised by the Migration Act including sections 189 and 196 of the Act and it is unconstitutional.

12.    A declaration pursuant to section 21 of the Federal Court of Australia Act 1976, (Cth) that my detention under section 189 of the Migration Act 1958 and continued detention at Maribyrnong Immigration Detention Centre by the Commonwealth from 29 August 2015 to November 2016 and continuing was and is unlawful. It was not and is not authorised by the Migration Act including sections 189 and 196 of the Act and it is unconstitutional. The Commonwealth is liable in and for the Tort of Negligence, in that the Commonwealth and the respondents owed me a non-delegable duty of care as a detainee. The Commonwealth owed me a duty to ensure my personal safety physically and my psychiatric safety and psychologically and mental safety at all times whilst I am detained at MIDC. The respondents breached that duty and continues to breach its duty of care to me by its failure and continued failure to among other things ensure that my life is not put at risk at the hands of his officers and agents and other detainees physically, and to ensure my psychological safety. As a consequence and result of that failure and breach by the respondents I suffered a psychiatric Injury in that:

13.    Since my detention at MIDC: from 29 August 2015 until now in November 2016, I have been subjected to Discrimination; Segregation; Abuse, Vilification; Intimidation; and Bullying by the respondents officers, and agents and at the hands of other detainees.

14.    The Commonwealth and the respondents should have known and ought to have known that: I will be harmed both physically, psychologically and emotionally in that as a vulnerable detainee and that: I Will be harmed by way of recrimination as a vulnerable detainee who acted as a whistle blower against both Serco Immigration Services Managers, Serco Emergency Team Unit staffs, Serco Cleaners, and Serco staff members, and that my continued detention was not authorised by the Migration Act 1958 and including sections 189 and 196 of the Act 1958, that it is false imprisonment and that it is unconstitutional.

15.    A declaration pursuant to section 21 of the Federal Court of Australia Act 1976, (Cth), that the Respondents actions of my detention under section 189 of the Migration Act 1958 and continued detention at Maribyrnong Immigration Detention Centre by the Commonwealth from 29 August 2015 to now November 2016, and continuing have caused me to be disenfranchised contrary to the protection afforded to me by the Commonwealth of Australia Constitution Act and that any legislation that has disfranchised me is ultra Vires and void.

16.    A declaration pursuant to section 21 of the Federal Court of Australia Act 1976, (Cth), that the Respondents actions of my detention under section 189 of the Migration Act 1958 is Ultra Vires.

17.    A declaration pursuant to section 21 of the Federal Court of Australia Act 1976, (Cth), that my detention under section 189 of the Migration Act 1958 at the North West Point Christmas Island Immigration Detention Centre from 13 March 2015 to 28 August 2015 by the Commonwealth and the Minister for Immigration and Border Protection is and was unlawful and was an unreasonable interference with my political communication and free speech under the Australian Constitution and is unconstitutional. It affected my ability to prepare, and conduct, and research for and meaningfully and properly prosecute my visa(s) Applications and matters and relating to my migration status in accordance with the applicable law and unconstitutional.

18.    A declaration pursuant to section 21 of the Federal Court of Australia Act 1976, (Cth) , that my detention under section 189 of the Migration Act 1958 at the North West Point Christmas Island Immigration Detention Centre from 13 March 2015 to 28 August 2015 is and was false imprisonment and that I was falsely imprisoned as my freedom of physical movement was, restrained without lawful justification by the Commonwealth and is an unreasonable interference with my political communication and free speech under the Australian Constitution and is unconstitutional.

19.    A declaration pursuant to section 21 of the Federal Court of Australia Act 1976, (Cth), the decision and continued decisions of the Commonwealth to detain and continue to detain me under section 189 of the Migration Act 1958 at North West Point, Christmas Island Immigration Detention Center (CIIDC) by the Commonwealth and the Minister for Immigration and Border Protection from 13 March 2015 to 28 August 2015 is a decision(s) that and which amount to jurisdictional error. On the bases and grounds that: It affected my ability to prepare, and conduct, and research for and meaningfully and properly prosecute my visa(s) Applications and matters and relating to my migration status. Further, and the respondents failed take into account and consider the impact that I suffered as a consequence of its breach of duty of care to me and ignored and failed to take into account the potential impact of the treatment of what I suffered and was subjected to Cruel, Inhumane or Degrading Treatment, abused, brutalised, Discriminated against, bullied, Intimidated, and harassed, Abused on a daily and consistent basis contrary and in breach to the provisions pursuant to section 189 of the Migration Act 1958 and an unreasonable interference with my political communication and free speech under the Australian Constitution and is unconstitutional. The Minister and the Commonwealth can not make decisions under the Migration Act contrary to the Constitution of Australia. The decision(s) is, are, and were beyond power and unconstitutional.

20.    A declaration pursuant to section 21 of the Federal Court of Australia Act 1976, (Cth) that my detention under section 189 of the Migration Act 1958 and continued detention at Christmas Island Immigration Detention Centre by the Commonwealth from 13 March 2015 to 28 August 2015 was and is unlawful. It was not and is not authorised by the Migration Act including sections 189 and 196 of the Act and it is unconstitutional.

21.    A declaration pursuant to section 21 of the Federal Court of Australia Act 1976, (Cth) that my detention under section 189 of the Migration Act 1958 and continued detention at Christmas Island Immigration Detention Centre by the Commonwealth from 13 March 2015 to 28 August 2015 was and is unlawful. It was and is not authorised by the Migration Act including sections 189 and 196 of the Act and it is unconstitutional. The Commonwealth is liable for the Tort of Negligence, in that the Commonwealth and the respondents owed me a non-delegable duty of care as a detainee. The Commonwealth owed me a duty to ensure my personal safety physically and my psychiatric safety and psychologically and mental safety at all times whilst I am detained at CIIDC. The respondents breached that duty AT THAT TIME and continues to breach its duty of care to me by its failure and continued failure to among other things ensure that my life is not put at risk at the hands of his officers and agents and other detainees physically, and to ensure my psychological safety. As a consequence and result of that failure and breach by the respondents I suffered a psychiatric Injury in that:

(a)    Whilst detained at Christmas Island Immigration Detention Centre from 13 March 2015 to 28 August 2015, I was subjected to the following: at CIIDC: from 13 March 2015 to 28 August 2015, I was subjected to Discrimination; Segregation; Abuse, Vilification; Intimidation; and Bullying by by Serco Immigration Services Managers, Serco Emergency Team Unit staffs, Serco Cleaners, and Serco staff members from Perth Yonga Hill and Darwin Immigration Detention Centres and from its staffs members who are either locals or residing in the local community of Christmas Island, the respondents officers, and agents and at the hands of other detainees.

22.    The Commonwealth and the respondents should have known and ought to have known that: I will be harmed both physically, psychologically and emotionally in that as a vulnerable detainee and that: I Will be harmed by way of recrimination as a vulnerable detainee who acted as a whistle blower against both commonwealth's officers, and Serco Immigration Services Managers, Serco Emergency Team Unit staffs, Serco Cleaners, and Serco staff members, and that my continued detention at CIIDC was not authorised by the Migration Act 1958 and including sections 189 and 196 of the Act 1958 and that it was unlawful, and false imprisonment and it was and is unconstitutional.

23.    The commonwealth and the respondents should have known and ought to have known that, I Will be harmed by way of recrimination as a vulnerable detainee who acted as a whistle blower against both officers of the commonwealth, Serco Immigration Services Managers, Serco Emergency Team Unit staffs, Serco Cleaners, and Serco staff members from Perth Yonga Hill and Darwin Immigration Detention Centres and from its staffs members and Contractors who are either locals or residing in the local community of Christmas Island as this has become known in the Christmas Island Immigration Detention Centre and the entire Christmas Island community.

24.    I will be harmed by Serco Immigration Services Managers, Serco Emergency Team Unit staffs, Serco Cleaners, and Serco staff members, Contractors who are either locals or residing in the local community of Christmas Island as this has become known in the Christmas Island Immigration Detention Centre and the entire Christmas Island community and other Detainees.

25.    A declaration pursuant to section 21 of the Federal Court of Australia Act 1976, (Cth) that my detention under section 189 of the Migration Act 1958 and continued detention at Maribyrnong Immigration Detention Centre by the Commonwealth from 29 August 2015 to November 2016 and continuing is unlawful, and is an unreasonable interference with my political communication and free speech under the Australian Constitution and is unconstitutional. It has and is and continues to affect my ability to prepare, and conduct, and research for and meaningfully and properly prosecute my visa(s) Applications and matters and relating to my migration status in accordance with the applicable law and unconstitutional.

26.    A declaration pursuant to section 21 of the Federal Court of Australia Act 1976, (Cth) that my detention and continued detention under section 189 of the Migration Act 1958 at Maribyrnong Immigration Detention Centre in Melbourne Victoria by the Commonwealth from 29 August 2015 to the present in November 2016 and continuing is false imprisonment and that I have been falsely imprisoned as my freedom of physical movement has been and is and continued to be restrained without lawful justification, and is an unreasonable interference with my political communication and free speech under the Australian Constitution and is unconstitutional.

27.    A declaration pursuant to section 21 of the Federal Court of Australia Act 1976, (Cth) that my detention under section 189 of the Migration Act 1958 and continued detention at Maribyrnong Immigration Detention Centre by the Commonwealth from 29 August 2015 to November 2016 and continuing was and is unlawful. It was and is not authorised by the Migration Act including sections 189 and 196 of the Act and it is unconstitutional.

28.    A declaration pursuant to section 21 of the Federal Court of Australia Act 1976, (Cth) that my detention under section 189 of the Migration Act 1958 and continued detention at Maribyrnong Immigration Detention Centre by the Commonwealth from 29 August 2015 to November 2016 and continuing was and is unlawful. It was not and is not authorised by the Migration Act including sections 189 and 196 of the Act and it is unconstitutional. The Commonwealth is liable for the Tort of Negligence, in that the Commonwealth and the respondents owed me a non-delegable duty of care as a detainee. The Commonwealth owed me a duty to ensure my personal safety physically and my psychiatric safety and psychologically and mental safety at all times whilst I am detained at MIDC. The respondents breached that duty and continues to breach its duty of care to me by its failure and continued failure to among other things ensure that my life is not put at risk at the hands of his officers and agents and other detainees physically, and to ensure my psychological safety. As a consequence and result of that failure and breach by the respondents I suffered a psychiatric Injury in that:

(a)    since my detention at MIDC: from 29 August 2015 until now in November 2016, I have been subjected to Discrimination; Segregation; Abuse, Vilification; Intimidation; and Bullying by the respondents officers, and agents and at the hands of other detainees.

29.     The Commonwealth and the respondents should have known and ought to have known that: I will be harmed both physically, psychologically and emotionally in that as a vulnerable detainee and that: I Will be harmed by way of recrimination as a vulnerable detainee who acted as a whistle blower against both Serco Immigration Services Managers, Serco Emergency Team Unit staffs, Serco Cleaners, and Serco staff members, and that my continued detention was not authorised by the Migration Act 1958 and including sections 189 and 196 of the Act 1958, that it is false imprisonment and that it is unconstitutional.

30.

31.    A declaration pursuant to section 21 of the Federal Court of Australia Act 1976, (Cth), the Commonwealth was and is Negligent and continued to be and acting a in a very serious negligent manner in regards to its non-delegable duty of care to me whilst detained under section 189 of the Migration Act 1958.

32.    A declaration that the Commonwealth breached its non-delegable duty of care to me when the Commonwealth detained me under section 189 of the Migration Act 1958 at both CIIDC and MIDC and continues to breach its non-delegable duty of care to me.

33.    A declaration that the Commonwealth and the Minister and the Secretary and his Department failed to comply with the non-delegable duty of care, when the Commonwealth and the Minister detained me under section 189 of the Migration Act 1958 at both CIIDC and MIDC and continues to breach its non-delegable duty of care to me and as a consequence:

34.    A declaration that as a consequence: I suffered a psychiatry Injury and Psychological Injury, and Mental Injury.

35.    I continue to suffer from a psychiatry Injury and Psychological Injury, and Mental Injury

36.    A declaration that the Commonwealth and the Minister and the Secretary and his Department could reasonably have expected and should have and ought to have known that I will suffer a psychiatry Injury and Psychological Injury, and Mental Injury would continue to suffer from a psychiatry Injury and Psychological Injury, and Mental Injury as a consequence and result of its negligence and failure and breach of its non-delegable duty of care to me.

37.     An injunction issue retraining the respondents from detaining me unlawfully and false imprisonment.

38.     The writ or orders in the nature of Habeas corpus releasing me from detention.

39.    The writ or orders in the nature of Habeas corpus releasing from MIDC.

40.     Damages, including aggravated and exemplary damages and Compensation for unlawful detention and false imprisonment.

41.     Damages, including aggravated and exemplary damages and Compensation for the psychiatry Injury and Psychological Injury, and Mental Injury that I suffered and continue to suffer as a consequence and result of its negligence and failure and breach of its non delegable duty of care to me.

Claim for interlocutory relief

The Applicant also claims interlocutory relief.

1.     An interlocutory injunction retraining the Commonwealth and the Minister for Immigration and Border Protection from continuing to detain me at Maribyrnong Immigration Detention Centre.

2.     A writ of Habeas corpus issued directed at and requiring the Respondents to release me from detention pending the hearing and determination of the proceedings before the Federal Court of Australia.

3.    The Commonwealth be ordered and directed to produce every document relating to my detention from 12 March 2015 to and including November 2016, incorporating all the psychological assessments and Reports from April 2009 to present, complaints in regards to my treatment by Serco Immigration Service officers, staffs, cleaners, Emergency Response Team officers (ERT) its agents, the detention Service providers at Christmas Island Immigration Detention Centre from 13 March 2015 to 28 August 2015, file notes and clinical entries and memo by the officers of the Commonwealth and International Health and Medical Services (IHMS), its detention health providers and sub contractors

4.    The Commonwealth be ordered and directed to produce every document relating to my detention from 29 August 2015 to present and including November 2016, incorporating all the psychological assessments and Reports from April 2009 to present, complaints in regards to my treatment by Serco Immigration Service officers, staffs, cleaners, Emergency Response Team officers (ERT) its agents, the detention Service providers at Christmas Island Immigration Detention Center from 29 August 2015 to present file notes and clinical entries and memo by the officers of the Commonwealth and International Health and Medical Services (IHMS), its detention health providers and sub contractors.

5.     The Commonwealth be ordered and directed to produce any investigations and or reports of such investigation and any actions it took in regards to its non-delegable duty of care to me since 13 March 2015 to 28 August 2015, and between 29 August 2015 November 2016 and continuing to conducts in breach of its non-delegable duty of care and in regards to my complaints regarding such conducts.

6.     Leave granted to file amended application under section 39B of the Judiciary Act 1903 with particulars, affidavits, and amended and supplementary Statement of Claims and any documents in the future.

7.     Any other interlocutory orders that the Court deems fit.

Representative action

The Applicant sues in a representative capacity.

Statement of claim

1.    The first Respondent the Commonwealth of Australia is the capable of being sued.

2.    The second and third Respondents are entities and bodies and officers of the Commonwealth and are capable of being sued.

3.    The Forth Respondent Serco is a body corporate pursuant to law and is capable of being sued.

4.    I am a protection Visa Applicant.

5.    At all material times since 02 December 2011, I have been detained under section 189 of the Migration Act 1958 by the Commonwealth and the Minister for Immigration and Border Protection in Immigration detention Centre(s)

6.    That at material times my detention under section 169 of the Migration Act 1958 and continued detention at Maribyrnong Immigration Detention Centre by the Commonwealth from 29 August 2015 November 2016 and continuing is unlawful. It has and is and continues to affect my ability to prepare, and conduct, and research for and meaningfully and properly prosecute my visa(s) Applications and matters and relating to and regarding my migration status in accordance with the applicable law. That at all material times my detention under section 189 of the Migration Act 1958 and continued detention at Maribyrnong Immigration Detention Centre by the Commonwealth from 29 August 2015 November 2016 and continuing is unlawful, and is an unreasonable interference with my political communication and free speech under the Australian Constitution and is unconstitutional. It has and is and continues to affect my ability to prepare, and conduct, and research for and meaningfully and properly prosecute my visa(s) Applications and matters and relating to my migration status in accordance with the applicable law

7.    A declaration pursuant to section 21 of the Federal Court of Australia Act 1976, (Cth) that my detention under section 189 of the Migration Act 1958 and continued detention at Maribyrnong Immigration Detention Centre by the Commonwealth from 29 August 2015 to November 2016 and continuing was and is unlawful. It was and is not authorised by the Migration Act including sections 189 and 196 of the Act and it is unconstitutional.

8.    A declaration pursuant to section 21 of the Federal Court of Australia Act 1976, (Cth) that my detention under section 189 of the Migration Act 1958 and continued detention at Maribyrnong Immigration Detention Centre by the Commonwealth from 29 August 2015 to November 2016 and continuing was and is unlawful. It was and is not authorised by the Migration Act including sections 189 and 196 of the Act and it is unconstitutional. The Commonwealth is liable for the Tort of Negligence, in that the Commonwealth and the respondents owed me a non-delegable duty of care as a detainee. The Commonwealth owed me a duty to ensure my personal safety physically and my psychiatric safety and psychologically and mental safety at all times whilst I am detained at MIDC. The respondents breached that duty and continues to breach its duty of care to me by its failure and continued failure to among other things ensure that my life is not put at risk at the hands of his officers and agents and other detainees physically, and to ensure my psychological safety. As a consequence and result of that failure and breach by the respondents I suffered a psychiatric Injury in that:

(a)    since my detention at MIDC: from 29 August 2015 until now in November 2016, I have been subjected to Discrimination; Segregation; Abuse, Vilification; Intimidation; and Bullying by the respondents officers, and agents and at the hands of other detainees.

9.    The Commonwealth and the respondents should have known and ought to have known that: I will be harmed both physically, psychologically and emotionally in that as a vulnerable detainee and that: I Will be harmed by way of recrimination as a vulnerable detainee who acted as a whistle blower against both Serco Immigration Services Managers, Serco Emergency Team Unit staffs, Serco Cleaners, and Serco staff members, and that my continued detention at MIDC was not authorised by the Migration Act 1958 and including sections 189 and 196 of the Act 1958 and it unconstitutional.

10.    A declaration pursuant to section 21 of the Federal Court of Australia Act 1976, (Cth) that my detention under section 189 of the Migration Act 1958 and continued detention at Maribyrnong Immigration Detention Centre by the Commonwealth from 29 August 2015 to November 2016 and continuing is unlawful, and is an unreasonable interference with my political communication and free speech under the Australian Constitution and is unconstitutional. It has and is and continues to affect my ability to prepare, and conduct, and research for and meaningfully and properly prosecute my visa(s) Applications and matters and relating to my migration status in accordance with the applicable law and unconstitutional.

11.    A declaration pursuant to section 21 of the Federal Court of Australia Act 1976, (Cth) that my detention under section 189 of the Migration Act 1958 and continued detention at Maribyrnong Immigration Detention Centre by the Commonwealth from 29 August 2015 to November 2016 and continuing was and is unlawful. It was not and is not authorised by the Migration Act including sections 189 and 196 of the Act and it is unconstitutional.

12.    A declaration pursuant to section 21 of the Federal Court of Australia Act 1976, (Cth) that my detention under section 189 of the Migration Act 1958 and continued detention at Maribyrnong Immigration Detention Centre by the Commonwealth from 29 August 2015 to November 2016 and continuing was and is unlawful. It was not and is not authorised by the Migration Act including sections 189 and 196 of the Act and it is unconstitutional. The Commonwealth is liable in and for the Tort of Negligence, in that the Commonwealth and the respondents owed me a non-delegable duty of care as a detainee. The Commonwealth owed me a duty to ensure my personal safety physically and my psychiatric safety and psychologically and mental safety at all times whilst I am detained at MIDC. The respondents breached that duty and continues to breach its duty of care to me by its failure and continued failure to among other things ensure that my life is not put at risk at the hands of his officers and agents and other detainees physically, and to ensure my psychological safety. As a consequence and result of that failure and breach by the respondents I suffered a psychiatric Injury in that: since my detention at MIDC: from 29 August 2015 until now in November 2016, I have been subjected to Discrimination; Segregation; Abuse, Vilification; Intimidation; and Bullying by the respondents officers, and agents and at the hands of other detainees.

13.    The Commonwealth and the respondents should have known and ought to have known that: I will be harmed both physically, psychologically and emotionally in that as a vulnerable detainee and that: I Will be harmed by way of recrimination as a vulnerable detainee who acted as a whistle blower against both Serco Immigration Services Managers, Serco Emergency Team Unit staffs, Serco Cleaners, and Serco staff members, and that my continued detention was not authorised by the Migration Act 1958 and including sections 189 and 196 of the Act 1958, that it is false imprisonment and that it is unconstitutional.

14.    That at all material times my detention and continued detention under section 189 of the Migration Act 1958 at Maribyrnong Immigration Detention Centre in Melbourne Victoria by the Commonwealth from 29 August 2015 to the present in November 2016 and continuing is false imprisonment and that I have been falsely imprisoned as my freedom of physical movement has been and is and continued to be restrained without lawful justification, and an unreasonable interference with my political communication and free speech under the Australian Constitution and is unconstitutional.

15.    That at all material times the Respondents actions of my detention under section 189 of the Migration Act 1958 and continued detention at Maribyrnong Immigration Detention Centre by the Commonwealth from 29 August 2015 to now and continuing have caused me to be disenfranchised contrary to the protection afforded to me by the Commonwealth of Australia Constitution Act and that any legislation that has disfranchised me is ultra Vires and void.

16.    That at all material times the Respondents actions of my detention under section 189 of the Migration Act 1958 is Ultra Vires.

17.    That at all material times my detention under section 189 of the Migration Act 1958 at the North West Point Christmas Island Immigration Detention Centre from 13 March 2015 to 28 August 2015 by the Commonwealth and the Minister for Immigration and Border Protection is and was unlawful and an unreasonable interference with my political communication and free speech under the Australian Constitution and is unconstitutional. It affected my ability to prepare, and conduct, and research for and meaningfully and properly prosecute my visa(s) Applications and matters and relating to my migration status in accordance with the applicable law

18.    That at all material times my detention under section 189 of the Migration Act 1958 at the North West Point Christmas Island Immigration Detention Centre from 13 March 2015 to 28 August 2015 is and was false imprisonment and that I was falsely imprisoned as my freedom of physical movement was, restrained without lawful justification by the Commonwealth and an unreasonable interference with my political communication and free speech under the Australian Constitution and is unconstitutional.

19.    That at all material times the decision and continued decisions of the Commonwealth to detain and continue to detain me under section 189 of the Migration Act 1958 at North West Point, Christmas Island Immigration Detention Center (CIIDC) by the Commonwealth and the Minister for Immigration and Border Protection from 13 March 2015 to 28 August 2015 is a decision(s) that and which amount to jurisdictional error. On the bases and grounds that: It affected my ability to prepare, and conduct, and research for and meaningfully and properly prosecute my visa(s) Applications and matters and relating to my migration status. Further, I suffered and was subjected to Cruel, Inhumane or Degrading Treatment, abused, brutalised, Discriminated against, bullied, Intimidated, and harassed, Abused on a daily and consistent basis contrary and in breach to the provisions pursuant to section 189 of the Migration Act 1958 and an unreasonable interference with my political communication and free speech under the Australian Constitution and is unconstitutional. The Minister and the Commonwealth can not make decisions under the Migration Act contrary to the Constitution of Australia. The decision(s) is, are, and were beyond power and unconstitutional.

20.    A declaration pursuant to section 21 of the Federal Court of Australia Act 1976, (Cth) that my detention under section 189 of the Migration Act 1958 and continued detention at Christmas Island Immigration Detention Centre by the Commonwealth from 13 March 2015 to 28 August 2015 was and is unlawful. It was not and is not authorised by the Migration Act including sections 189 and 196 of the Act and it is unconstitutional.

21.    A declaration pursuant to section 21 of the Federal Court of Australia Act 1976, (Cth) that my detention under section 189 of the Migration Act 1958 and continued detention at Christmas Island Immigration Detention Centre by the Commonwealth from 13 March 2015 to 28 August 2015 was and is unlawful. It was and is not authorised by the Migration Act including sections 189 and 196 of the Act and it is unconstitutional. The Commonwealth is liable for the Tort of Negligence, in that the Commonwealth and the respondents owed me a non-delegable duty of care as a detainee. The Commonwealth owed me a duty to ensure my personal safety physically and my psychiatric safety and psychologically and mental safety at all times whilst I am detained at CIIDC. The respondents breached that duty AT THAT TIME and continues to breach its duty of care to me by its failure and continued failure to among other things ensure that my life is not put at risk at the hands of his officers and agents and other detainees physically, and to ensure my psychological safety. As a consequence and result of that failure and breach by the respondents I suffered a psychiatric Injury in that:

(a)    Whilst detained at Christmas Island Immigration Detention Centre from 13 March 2015 to 28 August 2015, I was subjected to the following: at CIIDC: from 13 March 2015 to 28 August 2015, I was subjected to Discrimination; Segregation; Abuse, Vilification; Intimidation; and Bullying by by Serco Immigration Services Managers, Serco Emergency Team Unit staffs, Serco Cleaners, and Serco staff members from Perth Yonga Hill and Darwin Immigration Detention Centres and from its staffs members who are either locals or residing in the local community of Christmas Island. the respondents officers, and agents and at the hands of other detainees.

22.    The Commonwealth and the respondents should have known and ought to have known that: I will be harmed both physically, psychologically and emotionally in that as a vulnerable detainee and that: I Will be harmed by way of recrimination as a vulnerable detainee who acted as a whistle blower against both commonwealth's officers, and Serco Immigration Services Managers, Serco Emergency Team Unit staffs, Serco Cleaners, and Serco staff members, and that my continued detention at CIIDC was not authorised by the Migration Act 1958 and including sections 189 and 196 of the Act 1958 and that it was unlawful, and false imprisonment and it was and is unconstitutional.

23.    The commonwealth and the respondents should have known and ought to have known that, I Will be harmed by way of recrimination as a vulnerable detainee who acted as a whistle blower against both officers of the commonwealth, Serco Immigration Services Managers, Serco Emergency Team Unit staffs, Serco Cleaners, and Serco staff members from Perth Yonga Hill and Darwin Immigration Detention Centres and from its staffs members and Contractors who are either locals or residing in the local community of Christmas Island as this has become known in the Christmas Island Immigration Detention Centre and the entire Christmas Island community.

24.    That at all material times the decision and continued decisions of the Commonwealth to detain and continue to detain me under section 189 of the Migration Act 1958 at Maribyrnong Immigration Detention Centre by the Commonwealth and the Minister for Immigration and Border Protection is a decision(s) that and which amount to jurisdictional error. On the bases and grounds that: It has affected and continues to affect my ability to prepare, and conduct, and research for and meaningfully and properly prosecute my visa(s) Applications and matters and relating to my migration status. Further in that, and the respondents failed take into account and consider the impact that I suffered as a consequence of its breach of duty of care to me and ignored and failed to take into account the potential impact of the treatment of what I suffered and was subjected to Cruel, Inhumane or Degrading Treatment, abused, brutalised, Discriminated against, bullied, Intimidated, and harassed, Abused on a daily and consistent basis contrary to the provisions pursuant to section 189 of Migration Act 1958, and unreasonable interference with my political communication and free speech under the Australian Constitution and is unconstitutional.

25.    That at all material times the Minister and the Commonwealth can not make decisions under the Migration Act contrary to the Constitution of Australia. The decision(s) and continued decisions of the Commonwealth to detain and continue to detain me under section 189 of the Migration Act 1958 at Maribyrnong Immigration Detention Centre by the Commonwealth and the Minister for Immigration and Border Protection is and is, and are, and were decision(s) beyond power.

26.    The decision and continued decisions of the Commonwealth to detain and continue to detain me under section 189 of the Migration Act 1958, and In that, particularly, as the decision(s) was and were and continued to be made without regards to and a failure to take into account and a failure to have regards to the Commonwealth's non-delegable duty of care to take care and to take and ensure all reasonable care to ensure my personal safety and that of my mental, psychiatric, and psychological health and safety and the failure by the Commonwealth and the Minister to have regard and take into account the legal consequences of my continued detention at MIDC and or any detention Centre at all. This is legally unreasonable, irrational and illogical.

27.    The Commonwealth was and is Negligent and continued to be and acting a in a very serious negligent manner in regards to its non-delegable duty of care to me whilst detained under section 189 of the Migration Act 1958.

28.    The Commonwealth breached its non-delegable duty of care to me when the Commonwealth detained me under section 189 of the Migration Act 1958 at both CIIDC and MIDC and continues to breach its non-delegable duty of care to me.

29.    The Commonwealth and the Minister and the Secretary and his Department failed to comply with the non-delegable duty of care, when the Commonwealth and the Minister detained me under section 189 of the Migration Act 1958 at both CIIDC and MIDC and continues to breach its non-delegable duty of care to me. and as a consequence:

30.    As a consequence: I suffered a psychiatry Injury and Psychological Injury, and Mental Injury.

31.    I continue to suffer from a psychiatry Injury and Psychological Injury, and Mental Injury

32.    The Minister and the Secretary and his Department could reasonably have expected and should have and ought to have known that I will suffer a psychiatry Injury and Psychological Injury, and Mental Injury would continue to suffer from a psychiatry Injury and Psychological Injury, and Mental Injury as a consequence and result of its negligence and failure and breach of its non-delegable duty of care to me.

33.    The writ or orders in the nature of Habeas corpus releasing me from detention.

34.    The writ or orders in the nature of Habeas corpus releasing from MIDC.

35.    Damages, including aggravated and exemplary damages and Compensation for unlawful detention and false imprisonment.

36.    Damages, including aggravated and exemplary damages and Compensation for the psychiatry Injury and Psychological Injury, and Mental Injury that I suffered and continue to suffer as a consequence and result of its negligence and failure and breach of its non­delegable duty of care to me.

37.    The Commonwealth, and the Minister for Immigration and Border Protection were negligent and breached their and its non-delegable duty of care to me in that the the Commonwealth is was in breach of its own standards of care to me under the Migration Act 1958 and the Australian Constitution.

38.    My detention at the North West Point, Christmas Island Immigration Detention Center from 13 March 2015 to 28 August 2015 by the Commonwealth and the Minister for Immigration and Border Protection is and was unlawful under the Migration Act 1958 and the Constitution of Australia.

39.    My detention at the North West Point Christmas Island Immigration Detention Center from 13 March 2015 to 28 August 2015 is and was false imprisonment and that I was falsely imprisoned as my freedom of physical movement was, restrained without lawful justification by the Commonwealth.

40.    The Commonwealth was Negligent and continued to be negligent.

41.    The Commonwealth breached its non-delegable duty of care to me when the Commonwealth detained me at both CIIDC and continued to breach its non-delegable duty of care to me through out my detention at CIIDC.

42.    I suffered a psychiatry Injury and Psychological Injury, and Mental Injury.

43.    Throughout the course and at all times of my detention at the North West Point Christmas Island Immigration Detention Center in Christmas Island by the Commonwealth and the Minister for Immigration and Border Protection, the respondents, from 13 March 2015 to 28 August 2015, I was subjected to discrimination, segregation, abuse, assaulted, vilification and being vilified and intimidated and subjected to bullying by Serco Immigration Service officers, staffs, cleaners, Emergency Response Team officers (ERT) its agents, Christmas Island Detention Center staff and other detainees on a regular and consistent basis.

44.    By reason of the negligence and breach of the duty of care by the respondents my unlawful detention and false imprisonment at the North West Point, Immigration Detention Center In Christmas Island from 13 March 2015 to and including 28 August 2015, I suffered a psychiatry Injury and Psychological Injury, and an incapacitating Mental Injury.

45.    I continue to suffer from a psychiatry Injury and Psychological Injury, and an incapacitating Mental Injury

46.    Further, by reason of my detention at the North West Point Christmas Island Immigration Detention Center in Christmas Island by the Commonwealth and the Minister for Immigration and Border Protection, the respondents, from 13 March 2015 to 28 August 2015, and what I was subjected to in that I was subjected to discrimination, segregation, abuse, assaulted, vilification and being vilified and intimidated and subjected to bullying by Serco Immigration Service officers, staffs, cleaners, Emergency Response Team officers (ERT) its agents, Christmas Island Detention Center staff and other detainees on a regular and consistent basis. I suffered a psychiatry Injury and Psychological Injury, and an incapacitating Mental Injury and continue to surfer from that injury.

47.    At all material times from 29 August 2015 to now in November 2016 and continuing, I was detained and continued to be detained by the Commonwealth and the Minister for Immigration and Border Protection at Maribyrnong Immigration Detention Centre in Melbourne Victoria.

48.    The Commonwealth, and the Minister for Immigration and Border Protection were have and continue to be negligent and breached their and its non-delegable duty of care to me in that the the Commonwealth is and continues to breach its own standards of care to me.

49.    My detention at the Maribyrnong Immigration Detention Center (MIDC) in Melbourne Victoria. Immigration Detention Center from 29 August 2015 by the Commonwealth and the Minister for Immigration and Border Protection is and was and continue to be unlawful.

50.    My detention at the Maribyrnong Immigration Detention Center (MIDC) from 29 August 2015 and until present is and was and continues to be false imprisonment and that I was and I am being falsely imprisoned as my freedom of physical movement was, restrained without lawful justification by the Commonwealth.

51.    The Commonwealth was and is and continues to be Negligent and continued to be negligent.

52.    The Commonwealth breached its non-delegable duty of care to me when the Commonwealth detained me at both MIDC and continued to breach its non-delegable duty of care to me through out my detention at MIDC.

53.    As a consequence and result, I suffered a psychiatry Injury and Psychological Injury, and Mental Injury.

54.    Throughout the course and at all times of my detention at the Maribyrnong Immigration Detention Center (MIDC) by the Commonwealth and the Minister for Immigration and Border Protection, the respondents, from 29 August 2015 and until now and continuing, I have been subjected to discrimination, segregation, abuse, assaulted, vilification and being vilified and intimidated and subjected to bullying by Serco Immigration Service officers, staffs, Emergency Response Team officers (ERT) its agents, and by other detainees on a regular and consistent basis.

55.    By reason of the negligence and breach of the duty of care by the respondents my unlawful detention and false imprisonment at the Maribyrnong Immigration Detention Center (MIDC), from 29 August 2015 until present and ongoing, I suffered a psychiatry Injury and Psychological Injury, and an incapacitating Mental Injury.

56.    I continue to suffer from a psychiatry Injury and Psychological Injury, and an incapacitating Mental Injury

57.    Further, by reason of my detention at the Maribyrnong Immigration Detention Center (MIDC) by the Commonwealth and the Minister for Immigration and Border Protection, the respondents, from 29 August 2015 until now and continuing and what I have been subjected to in that I have been and continue to be subjected to discrimination, segregation, abuse, assaulted, vilification and being vilified and intimidated and subjected to bullying by Serco Immigration Service officers, staffs , Emergency Response Team officers (ERT) its agents, Christmas Island Detention Center staff and other detainees on a regular and consistent basis, I suffered a psychiatry Injury and Psychological Injury, and an incapacitating Mental Injury and continue to surfer from that injury.

58.    PARTICULARS OF INJURY

59.    Psychiatry Injury, and Psychological Injury, and an incapacitating Mental Injury.

60.    Alternatively, Psychiatry Injury, and Psychological Injury, and acceleration, exacerbation of an incapacitating Mental Injury and on going.

61.    Pain and suffering and other condition as a result.

62.    The injuries occurred by reason of the negligence of the Respondents, its officers and delegates and its agents, and or by reason of the breach by the first and second Respondents duty of care owed to as a detainee under the Commonwealth's detention and Immigration Detention.

63.    PARTICULARS OF NEGLIGENCE AND/ OR BREACH OF DUTY OF CARE

64.    Requiring, permitting or allowing his delegates, officers and agents to detain and continue to detain me at CIIDC, from 13 March 2015 to 28 August 2015, when it knew and ought to have known that it was unsafe to do so and and that it was unlawful to continue to detain me at CIIDC and that it was false imprisonment.

65.    Requiring, permitting or allowing his delegates, officers and agents to detain and continue to detain me at CIIDC, from 13 March 2015 to 28 August 2015, when it knew and ought to have known that it was unsafe to do so and and that it was unlawful to continue to detain me at CIIDC and that it was false imprisonment in that I was subjected to discrimination, segregation, abuse, assaulted, vilification and being vilified and intimidated and subjected to bullying by Serco Immigration Service officers, staffs, cleaners, Emergency Response Team officers (ERT) its agents, Christmas Island Detention Center staff and other detainees on a regular and consistent basis.

66.    Requiring, permitting or allowing his delegates, officers and agents to detain and continue to detain me at MIDC, from 29 August 2015, when it knew and ought to have known that it was and is and continues to be unsafe to do so and and that it was unlawful to continue to detain me at MIDC and that it was and is and continues be false imprisonment in that I was subjected to discrimination, segregation, abuse, assaulted, vilification and being vilified and intimidated and subjected to bullying by Serco Immigration Service officers, staffs, cleaners, Emergency Response Team officers (ERT) its agents, and other detainees on a regular and consistent basis.

67.    Failing to provide me with any or any adequate alternative place of detention and release from detention or detention in the community given the Commonwealth and the Minister is and was aware of what was happening to me and continues to happen to me.

68.    Failing adequately or at all to supervise and monitor and bring or stop the illegal and unlawful activities of its officers, delegates and agents and the negligence and it breach of duty of care to me.

69.    Requiring me to be detained and continued to be detained at both CIIDC and MIDC, putting my life in danger and coursing me irreparable harm and severe Psychiatry Injury and Psychological Injury, and an incapacitating Mental Injury.

70.    Failing to release me from harm's way by relocating me VIDC or Alternative Place of Detention in an APOD given the situation and or to detain me in the community in community detention.

71.    Requiring me to be detained and continued to be detained at CIIDC and MIDC, which has caused me harm and is and are unsafe. And a danger to my life.

72.    Failing to undertake any or any adequate investigations of the complaints that I made and the suitability of my continued detention at both CIIDC MIDC given the situations.

73.    Failing to take all reasonable care to reduce the risks mental harm to me associated with what I was subjected to in CIIDC and MIDC and ongoing given its non-delegable duty of care that it owed to me.

74.    Failing to provide me with a clinical psychologists for my mental injury.

75.    Failing to comply with its non-delegable duty of care owed to me.

76.    Falling to release me from unlawful detention.

77.    Failing to release me from false imprisonment.

78.    Failing to act according to law and acting unreasonably, irrationally and illogically at all times since detaining from 13 March 2015 until presently now and ongoing.

79.    An interlocutory injunction retraining the Commonwealth and the Minister for Immigration and Border Protection from continuing to detain me at Maribyrnong Immigration Detention Centre.

80.    interlocutory relief

81.    An interlocutory injunction retraining the Commonwealth and the Minister for Immigration and Border Protection from continuing to detain me at Maribyrnong Immigration Detention Centre.

82.    A writ of Habeas corpus issued directed at and requiring the Respondents to release me from detention pending the hearing and determination of the proceedings before the Federal Court of Australia.

83.    The Commonwealth be ordered and directed to produce every document relating to my detention from 12 March 2015 to and including November 2016, incorporating all the psychological assessments and Reports from April 2009 to present, complaints in regards to my treatment by Serco Immigration Service officers, staffs, cleaners, Emergency Response Team officers (ERT) its agents, the detention Service providers at Christmas Island Immigration Detention Centre from 13 March 2015 to 28 August 2015,

84.    The Commonwealth be ordered and directed to produce every file notes and clinical entries and memo by the officers of the Commonwealth and International Health and Medical Services (IHMS), its detention health providers and sub contractors

85.    The Commonwealth be ordered and directed to produce every document relating to my detention from 29 August 2015 to present and including November 2016, incorporating all the psychological assessments and Reports from April 2009 to present, complaints in regards to my treatment by Serco Immigration Service officers, staffs, cleaners, Emergency Response Team officers(ERT) its agents, the detention Service providers at Christmas Island Immigration Detention Center from 29 August 2015 to present file notes and clinical entries and memo by the officers of the Commonwealth and International Health and Medical Services (IHMS), its detention health providers and sub contractors.

86.    The Commonwealth be ordered and directed to produce any investigations and or reports of such investigation and any actions it took in regards to its non-delegable duty of care to me since 13 March 2015 to 28 August 2015, and between 29 August 2015 November 2016 and continuing to conducts in breach of its non-delegable duty of care and in regards to my complaints regarding such conducts.

87.    Leave granted to file amended application under section 39B of the Judiciary Act 1903 with particulars, affidavits, and amended and supplementary Statement of Claims and any documents in the future.

88.    Any other interlocutory orders that the Court deems fit

appendix 3

Originating application for relief under section 39B Judiciary Act 1903

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.     A declaration pursuant to section 21 of the Federal Court of Australia Act 1976, (Cth), that my detention and continued detention is unlawful, on the grounds that: I am detained and being detained by employees of Serco and persons who are not officers of the Commonwealth contrary to section 61 of the Australian Constitution.

Particulars

(i)    my detention under section 189 of the Migration Act 1958 involves the executive power of the Commonwealth under Chapter 11 of the Constitution;

(ii)    the executive power of the Commonwealth is vested in the Queen and must be exercised and maintained by the Governor-General under section 61 of the Constitution and the exercise and maintenance of the executive power of the Commonwealth must be by officers of the Commonwealth under Chapter 11 of the Constitution and within the meaning of section 75(v) of the Constitution; and

(iii)    neither Serco nor its employees are officers of the Commonwealth; and my detention by persons who are not officers of the Commonwealth is unlawful.

(v)     the conditions of my detention at Maribyrnong Immigration Detention Centre are unlawful, cruel, inhumane and degrading and that they involve an unreasonable interference with my political communication under the Constitution.

(v)     the conditions of my detention at Maribyrnong Immigration Detention Centre are unlawful in that they have and is affecting me and has affected me and continues to affect my ability to prepare, and conduct, and research for and meaningfully and properly, prosecute my visa(s) applications and matters and relating to and regarding my migration status under the Migration Act 1958.

(vi)    the conditions of my detentions are NOT authorised by any laws of the Commonwealth and if they are authorised by section 189 of the Migration Act 1958, that provisions is invalid to the extent that it imposes impediments on my constitutional freedom of political communication, it is invalid.

2.    A declaration pursuant to section 21 of the Federal Court of Australia Act 1976, (Cth), that the decision and continued decisions to detain me at Maribyrnong Immigration Detention Centre and any detention centres or detention by the Commonwealth and the Minister for Immigration and Border Protection is a decision(s), and are decisions that and which amounts to jurisdictional error.

Particulars

•    I am detained and being detained by employees of Serco and persons who are not officers of the Commonwealth contrary to section 61 of the Australian Constitution.

•    my detention under section 189 of the Migration Act 1958 involves the executive power of the Commonwealth under Chapter 11 of the Constitution;

•    the executive power of the Commonwealth is vested in the Queen and must be exercised and maintained by the Governor-General under section 61 of the Constitution and the exercise and maintenance of the executive power of the Commonwealth must be by officers of the Commonwealth under Chapter 11 of the Constitution and within the meaning of section 75(v) of the Constitution; and

•    neither Serco nor its employees are officers of the Commonwealth;

•    my detention by persons who are not officers of the Commonwealth is unlawful;

•    the conditions of my detention at Maribyrnong Immigration Detention Centre are unlawful, cruel, inhumane and degrading and that they involve an unreasonable interference with my political communication under the Constitution;

•    the conditions of my detention at Maribyrnong Immigration Detention Centre are unlawful in that they have and is affecting me and has affected me and continues to affect my ability to prepare, and conduct, and research for and meaningfully and properly, prosecute my visa(s) applications and matters and relating to and regarding my immigration status under the Migration Act 1958;

•    the conditions of my detentions are NOT authorised by any laws of the Commonwealth and if they are authorised by section 189 of the Migration Act 1958, that provisions is invalid to the extent that it imposes impediments on my constitutional freedom of political communication;

•    the Commonwealth owed me a non-delegable duty of care under the law to ensure my personal safety physically and my psychiatric safety and psychologically and mental safety at all times whilst I am detained at MIDC;

•    the Commonwealth and its officers and the respondents breached that duty and continues to breach its duty of care to me by its failure and continued failure to among other things ensure that my life is not put at risk at the hands of his officers and agents and other detainees physically, and to ensure my psychological safety;

•    Since my detention at MIDC: from 29 August 2015 until now in November 2016, I have been subjected to Discrimination: Segregation; Abuse, Vilification; Intimidation; and Bullying by Serco managers and employees and its Emergency Response Team (ERT) officers, and agents and at the hands of other detainees;

•    the Commonwealth and its officers and agents the respondents, failed to protect me from harm from its own officers and agents and the hands of other detainees;

•    the Commonwealth and the respondents should have known and ought o have known that: I will be harmed physically, psychologically, mentally and emotionally in that as a vulnerable detainee and that: I Will be harmed by way of recrimination as a vulnerable detainee who acted as a whistle blower against both Serco Immigration Services Managers, Serco Emergency Team Unit staffs, Serco Cleaners. and Serco staff members, and other detainees; and

•    as a consequence and result of that breach by the Commonwealth, I suffered a psychiatric Injury.

3.     A declaration pursuant to section 21 of the Federal Court of Australia Act 1976, (Cth), that my detention and continued detention at North West Point, Christmas Island Immigration Detention Centre (CIIDC), between 13 March 2015 to 28 August 2015 was unlawful, on the grounds that:

I was detained at that time by employees of Serco and persons who are not officers of the Commonwealth contrary to section 61 of the Australian Constitution.

(i)    my detention under section 189 of the Migration Act 1958 involves the executive power of the Commonwealth under Chapter 11 of the Constitution;

(ii)    the executive power of the Commonwealth is vested in the Queen and must be exercised and maintained by the Governor-General under section 61 of the Constitution and the exercise and maintenance of the executive power of the Commonwealth must be by officers of the Commonwealth under Chapter 11 of the Constitution and within the meaning of section 75(v) of the Constitution; and

(iii)    neither Serco nor its employees are officers of the Commonwealth; and

(iv)    my detention by persons who are not officers of the Commonwealth is unlawful.

(v)    the conditions of my detention at Maribyrnong Immigration Detention Centre are unlawful, cruel, inhumane and degrading and that they involve an unreasonable interference with my political communication under the Constitution.

(vi)    the conditions of my detention at Maribyrnong Immigration Detention Centre are unlawful in that they have and is affecting me and has affected me and continues to affect my ability to prepare, and conduct, and research for and meaningfully and properly, prosecute my visa(s) applications and matters and relating to and regarding my migration status under the Migration Act 1958.

(vii)    the conditions of my detentions are NOT authorised by any laws of the Commonwealth and if they are authorised by section 189 of the Migration Act 1958, that provisions is invalid to the extent that it imposes impediments on my constitutional freedom of political communication.

4.     A declaration pursuant to section 21 of the Federal Court of Australia Act 1976, (Cth), that the decision and continued decisions to detain and continue to detain me at North West Point, Christmas Island Immigration Detention Center (CIIDC) from 13 March 2015 to 28 August 2015 is and are decision(s) that and which amounts to jurisdictional error.

Particulars

I was detained at the time by employees of Serco and persons who are not officers of the Commonwealth contrary to section 61 of the Australian Constitution.

•    my detention under section 189 of the Migration Act 1958 involves the executive power of the Commonwealth under Chapter 11 of the Constitution;

•    the executive power of the Commonwealth is vested in the Queen and must be exercised and maintained by the Governor-General under section 61 of the Constitution and the exercise and maintenance of the executive power of the Commonwealth must be by officers of the Commonwealth under Chapter 11 of the Constitution and within the meaning of section 75(v) of the Constitution; and

•    neither Serco nor its employees are officers of the Commonwealth;

•    my detention by persons who are not officers of the Commonwealth is unlawful;

•    the conditions of my detention at North West Point, Christmas Island Immigration Detention Centre are and were unlawful, cruel, inhumane and degrading and that they involve an unreasonable interference with my political communication under the Constitution;

•    the conditions of my detention at North West Point. Christmas Island Immigration Detention Centre are and were unlawful in that they had a very negative impact on me and affected my ability to prepare, and conduct, and research for and meaningfully and properly, prosecute my visa(s) applications and matters and relating to and regarding my immigration status under the Migration Act 1958;

•    the conditions of my detentions at North West Point, Christmas Island Immigration Detention Centre are NOT and were NOT authorised by any laws of the Commonwealth and if they are and were authorised by section 189 of the Migration Act 1958, that provisions is invalid to the extent that it imposed impediments on my constitutional freedom of political communication;

•    the Commonwealth owed me a non-delegable duty of care under the law to ensure my personal safety physically and my psychiatric safety and psychologically and mental safety at all times whilst I am detained at CIIDC

•    the Commonwealth and its officers and the respondents breached that duty and continues to breach its duty of care to me by its failure and continued failure to among other things ensure that my life is not put at risk at the hands of his officers and Serco employees and its agents and other detainees physically, and to ensure my psychological safety;

•    Since my detention at CIIDC: from 13 March 2015 and to and including 28 August 2015, I was subjected to Discrimination; Segregation; Abuse, Vilification; Intimidation; and Bullying by Serco managers and employees and its Emergency Response Team (ERT) officers, and agents and at the hands of other detainees;

•    the Commonwealth and its officers and agents the respondents, failed to protect me from harm from its own officers and agents and the hands of other detainees;

•    the Commonwealth and the respondents should have known and ought o have known that: I will be harmed physically, psychologically, mentally and emotionally in that as a vulnerable detainee and that: I Will be harmed by way of recrimination as a vulnerable detainee who acted as a whistle blower against both Serco Immigration Services Managers, Serco Emergency Team Unit staffs. Serco Cleaners, and Serco staff members. and other detainees; and

•    as a consequence and result of that breach by the Commonwealth, I suffered a psychiatric Injury.

5.     An injunction issue retraining the respondents from detaining me unlawfully and false imprisonment.

6.     The writ or orders in the nature of Habeas corpus releasing me from detention.

7.    The writ or orders in the nature of Habeas corpus releasing from MIDC.

8.    Damages, including aggravated and exemplary damages and Compensation for unlawful detention and false imprisonment.

9.     Damages, including aggravated and exemplary damages and Compensation for the psychiatry Injury and Psychological Injury, and Mental Injury that I suffered and continue to suffer as a consequence and result of its negligence and failure and breach of its non-delegable duty of care to me.

10.     Damages, including aggravated and exemplary damages and Compensation for the infliction of intentional emotional distress.

Claim for interlocutory relief

The Applicant also claims interlocutory relief.

1.    An interlocutory injunction retraining the Commonwealth and the Minister for Immigration and Border Protection from continuing to detain me at Maribyrnong Immigration Detention Centre.

2.    A writ of Habeas corpus issued directed at and requiring the Respondents to release me from detention pending the hearing and determination of the proceedings before the Federal Court of Australia.

3.    The Commonwealth be ordered and directed to produce every document relating to my detention from 12 March 2015 to and including November 2016, incorporating all the psychological assessments and Reports, complaints in regards to my treatment by Serco Immigration Service officers, staffs, cleaners, Emergency Response Team officers (ERT) its agents, the detention Service providers at Christmas Island Immigration Detention Centre from 13 March 2015 to 28 August 2015, file notes and clinical entries and memo by the officers of the Commonwealth and International Health and Medical Services (IHMS), its detention health providers and sub contractors

4.    The Commonwealth be ordered and directed to produce every document relating to my detention from 29 August 2015 to present and including November 2016, incorporating all the psychological assessments and Reports, Investigations Reports regarding my complaints, complaints in regards to my treatment by Serco Immigration Service officers, staffs, cleaners, Emergency Response Team officers (ERT) its agents, the detention Service providers at Maribymong Immigration Detention Centre from 29 August 2015 to present file notes and clinical entries and memo by the officers of the Commonwealth and International Health and Medical Services (IHMS), its detention health providers and sub contractors.

5.     The Commonwealth be ordered and directed to produce any investigations and or reports of such investigation and any actions it took in regards to its non-delegable duty of care to me since 13 March 2015 to 28 August 2015, and between 29 August 2015 November 2016 and continuing to conducts in breach of its non-delegable duty of care and in regards to my complaints regarding such conducts.

6.    Leave granted to file amended application under section 39B of the Judiciary Act 1903 with particulars, affidavits, and amended and supplementary Statement of Claims and any documents in the future.

7.    Any other interlocutory orders that the Court deems fit.

Representative action

The Applicant sues in a representative capacity

Statement of claim

1.    The first Respondent the Commonwealth of Australia is the capable of being sued.

2.    The second and third Respondents are entities and bodies and officers of the Commonwealth and are capable of being sued.

3.    The Forth Respondent Serco is a body corporate pursuant to law and is capable of being sued.

4.    I am a protection Visa Applicant.

5.    As a result of the actions of the Commonwealth and Serco, at all material times since 02 December 2011, I have been detained at Villa-wood Immigration Detention Centre (VIDC), Christmas Island Immigration Detention Centre (CIIDC), and at Maribyrnong Immigration Detention Centre (MIDC).

6.    Separation of Powers

7.    My detention under section 189 involves the executive power of the Commonwealth under Chapter II of the Constitution.

8.    The executive power of the Commonwealth is vested in the Queen and must be exercised and maintained by the Governor-General under section 61 of the Constitution and, that the exercise and maintenance of the executive power of the Commonwealth must be by officers of the Commonwealth under Chapter II of the Constitution and within the meaning of section 75(V) of the Constitution.

9.    Neither Serco nor its employees are officers of the Commonwealth, and

10.    My detention by persons who are not officers of the Commonwealth is unlawful and false imprisonment.

11.    ORDERS

12.    I seek orders in the nature of habeas corpus, and in the alternative, I seek declarations pursuant to section 21 of the Federal Court of Australia Act 1976, (Cth), that Serco and its employees are officers of the Commonwealth and injunctions.

13.    In the event that an injunction is not available to restrain the unlawful conduct of my detention, then I seek equitable compensation.

14.    My detention by Serco is without lawful authority and is false imprisonment and that as a result, I have suffered damage.

15.    The Commonwealth is vicariously liable for Serco's actions in detaining me and subjecting me to cruel, inhumane and degrading conditions and caused me significant harm.

16.    The conditions of my detention at Maribyrnong Immigration Detention Centre (MIDC) and at Christmas Island Immigration Detention Centre (CIIDC), deprived me of significant aspects of my residual liberty.

17.    I was deprived of family visits at CIIDC, deprived of receiving birth gifts and Christmas gifts from my family and friends and from receiving any of my properties with significant sentimental value to me and my family, nor to receive even my phone that was was not working or functioning properly, no escorts to church, and was deprived of my properties and I was subjected to:

18.    Discrimination; Segregation; Abuse, Vilification; Intimidation; and Bullying by Serco managers and employees and its Emergency Response Team (ERT) officers, and agents and at the hands of other detainees;

19.    These significant restrictions upon my residual liberty are not inherent requirements of my being detained for the purposes of section 189 of the Migration Act 1958, and are not specifically authorised by a law or any law of the Commonwealth.

20.    If the restraints upon my residual liberty are purportedly endorsed by section 189 of the Migration Act 1958, then that provision is invalid to the extent that it imposes an impediment on my political speech and, to the extent that those restraints are not endorsed by section 189 of the Migration Act 1958 or any other law of the Commonwealth, they are unlawful.

21.    I seek orders in the nature of habeas corpus, in the alternative, an injunction restraining the restraints upon my residual liberty whilst detained and, in lieu of or, in the event the Court is unable to grant injunctive relief, then, I seek equitable compensation.

22.    The significant restraints on my residual liberty by Serco are without lawful authority and amounts to false imprisonment and the intentional infliction of emotional distress, mental harm and anguish and, significant psychological, and psychiatric injury and harm.

23.    I have suffered damage as a result.

24.    The Commonwealth is vicariously liable for the actions of Serco regarding the restraints of my significant residual liberties and, I claim damages from the Commonwealth and Serco for false imprisonment and the international infliction of emotional distress, mental harm and anguish and, significant psychological, and psychiatric injury and harm.

25.    I seek orders restraining the restraints upon my residual liberty whilst detained at CIIDC and MIDC.

26.    My detention is not authorised by any law of the Commonwealth and is unlawful. As a result, I seek orders in the nature of habeas corpus for my release from detention or, in the alternative, an injunction restraining my detention and continued detention at MIDC or any other detention centre(s), or in lieu thereof or, if there is no power to grant an injunction, equitable compensation.

27.    My detention is not in MIDC by Serco is without lawful authority and is false imprisonment or the international infliction of emotional distress, mental harm and anguish and, significant psychological, and psychiatric injury and harm.

28.    I suffered damage.

29.    The Commonwealth is vicariously liable for Serco's actions in detaining me at CIIDC and MIDC, and I claim damages from the Commonwealth and Serco for false imprisonment and the international infliction of emotional distress, mental harm and anguish and, significant psychological, and psychiatric injury and harm.

30.    The Commonwealth is liable for false imprisonment in respect of my detention between 13 March 2015 to 28 August 2015 at CIIDC, in that certain Commonwealth, employed by the respondents owed me a fiduciary duty under the Migration Act 1958.

31.    Those officers of the Commonwealth pursuant to section 5 (1) of the Act, and were employed under the Public Service Act 1999 (Cth), committed the tort of misfeasance in public office in relation to my continued detention from 13 March 2015 to 28 August 2015 at CIIDC, and from 29 August 2015 to present time in 2016 at MIDC, and the Commonwealth is vicariously liable for the actions of those Commonwealth employees

32.    The Commonwealth owed me a non-delegable duty of care under the law to ensure my personal safety physically and my psychiatric safety and psychologically and mental safety at all times whilst I am detained at at CIIDC and at MIDC;

33.    The Commonwealth and its officers and the respondents breached that duty and continue to breach its duty of care to me by its failure and continued failure to among other things ensure that my life is not put at risk at the hands of his officers and agents and other detainees physically, and to ensure my psychological safety;

34.    Since my detention at MIDC: from 29 August 2015 until now in November 2016, I have been subjected to Discrimination; Segregation; Abuse, Vilification; Intimidation; and Bullying by Serco managers and employees and its Emergency Response Team (ERT) officers, and agents and at the hands of other detainees;

35.    The Commonwealth and its officers and agents the respondents, failed to protect me from harm from its own officers and agents and the hands of other detainees;

36.    The Commonwealth and the respondents should have known and ought o have known that: I will be harmed physically, psychologically, mentally and emotionally in that as a vulnerable detainee and that: I Will be harmed by way of recrimination as a vulnerable detainee who acted as a whistle blower against both Serco Immigration Services Managers, Serco Emergency Team Unit staffs. Serco Cleaners, and Serco staff members, and other detainees; and

37.    as a consequence and result of that breach by the Commonwealth, I suffered a psychiatric Injury.

38.    PARTICULARS OF INJURY

39.    Psychiatry Injury, and Psychological Injury, and an incapacitating Mental Injury.

40.    Alternatively, Psychiatry Injury, and Psychological Injury, and acceleration, exacerbation of an incapacitating Mental Injury and on going.

41.    Pain and suffering and other condition as a result.

42.    The injuries occurred by reason of the negligence of the Respondents, its officers and delegates and its agents, and or by reason of the breach by the first and second Respondents duty of care owed to me as a detainee under the Commonwealth's detention and Immigration Detention.

43.    PARTICULARS OF NEGLIGENCE AND/ OR BREACH OF DUTY OF CARE

44.    Requiring, permitting or allowing his delegates, officers and agents to detain and continue to detain me at CIIDC, from 13 March 2015 to 28 August 2015, when it knew and ought to have known that it was unsafe to do so and and that it was unlawful to continue to detain me at CIIDC and that it was false imprisonment.

45.    Requiring, permitting or allowing his delegates. officers and agents to detain and continue to detain me at CIIDC, from 13 March 2015 to 28 August 2015, when it knew and ought to have known that it was unsafe to do so and and that it was unlawful to continue to detain me at CIIDC and that it was false imprisonment in that I was subjected to discrimination, segregation, abuse, assaulted, vilification and being vilified and intimidated and subjected to bullying by Serco Immigration Service officers, staffs, cleaners, Emergency Response Team officers (ERT) its agents, Christmas Island Detention Center staff and other detainees on a regular and consistent basis.

46.    Requiring, permitting or allowing his delegates, officers and agents to detain and continue to detain me at MIDC, from 29 August 2015, when it knew and ought to have known that it was and is and continues to be unsafe to do so and and that it was unlawful to continue to detain me at MIDC and that it was and is and continues be false imprisonment in that I was subjected to discrimination, segregation, abuse, assaulted, vilification and being vilified and intimidated and subjected to bullying by Serco Immigration Service officers, staffs, cleaners, Emergency Response Team officers (ERT) its agents, and other detainees on a regular and consistent basis.

47.    Failing to provide me with any or any adequate alternative place of detention and release from detention or detention in the community given the Commonwealth and the Minister is and was aware of what was happening to me and continues to happen to me.

48.    Failing adequately or at all to supervise and monitor and bring or stop the illegal and unlawful activities of its officers, delegates and agents and the negligence and it breach of duty of care to me.

49.    Requiring me to be detained and continued to be detained at both CIIDC and MIDC, putting my life in danger and coursing me irreparable harm and severe Psychiatry Injury and Psychological Injury, and an incapacitating Mental Injury.

50.    Failing to release me from harm's way by relocating me VIDC to detain me in the community in community detention.

51.    Requiring me to be detained and continued to be detained at CIIDC and MIDC, which has caused me harm and is and are unsafe. And a danger to my life.

52.    Failing to undertake any or any adequate investigations of the complaints that I made and the suitability of my continued detention at both CIIDC MIDC given the situations.

53.    Falling to take all reasonable care to reduce the risks mental harm to me associated with what I was subjected to in CIIDC and MIDC and ongoing given its non-delegable duty of care that it owed to me.

54.    Falling to provide me with a clinical psychologists for my mental injury.

55.    Failing to comply with its non-delegable duty of care owed to me.

56.    Failing to release me from unlawful detention.

57.    Failing to release me from false imprisonment.

58.    Failing to act according to law and acting unreasonably, irrationally and illogically at all times since detaining from 13 March 2015 until presently now and ongoing.