FEDERAL COURT OF AUSTRALIA

SBEG v Commonwealth of Australia [2012] FCAFC 189

THE COURT ORDERS THAT:

1.    The appeal should be dismissed.

2.    The appellant should pay the respondent’s costs of the appeal to be taxed unless earlier agreed.

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

REASONS FOR JUDGMENT

INTRODUCTION

1    The appellant is a young stateless man. Prior to December 2010, he left Kuwait with his family and they travelled through Syria and Malaysia and then by boat to Indonesia. In December 2010 the appellant travelled by boat from Indonesia to Christmas Island. Since then, the appellant has been detained as an unlawful non-citizen by the Commonwealth of Australia pursuant to the provisions of the Migration Act 1958 (Cth) (the Act).

2    The appellant has a history of psychiatric problems. While in detention, he has engaged in incidents of self-harm, including an unsuccessful attempt to hang himself. Expert medical opinion is to the effect that, as a result of the circumstances of his detention, his mental health has been adversely affected.

3    The appellant brought proceedings against the Secretary of the Department of Immigration and Citizenship (the Secretary), the Commonwealth and the Minister for Immigration and Citizenship (the Minister), claiming that the impairment to his mental health was caused, and is being exacerbated by, the negligence of the respondents.

4    The appellant’s age is unknown. At trial his case was initially presented on the basis that he was born on 31 December 1993, and was thus a minor when he arrived in Australia and remained so until the last day of 2011. However, in the final submissions made on the appellant’s behalf at trial, the appellant’s Counsel informed the primary judge:

As a result of further information received the [appellant’s] lawyers now believe the [appellant] may not have been under 18 for the period of detention for which the [appellant] claims damages.

5    On the basis of this information, the primary judge dismissed the claim against the Minister which was based on the Minister’s duties as guardian of non-citizen children who arrive in Australia: see Immigration (Guardianship of Children) Act 1946 (Cth) ss 4AAA and 6. In the appeal to this Court, there is no challenge to this aspect of the primary judge’s decision.

6    The primary judge dismissed the appellant’s claim against the Secretary on the basis that the appellant was not being detained or held “by, or on behalf” of the Secretary within the terms of the definition of “immigration detention” in s 5(1) of the Act: see S v Secretary, Department of Immigration and Multicultural and Indigenous Affairs (2005) 143 FCR 217 (S). Once again, this aspect of the primary judge’s decision is not challenged on appeal.

7    While it was common ground at trial that the Commonwealth owes the appellant a non-delegable duty to exercise reasonable care for his health while he is in detention, the appellant’s claim against the Commonwealth was dismissed. We will set out later the reasons which led to that outcome. The Commonwealth is now the sole respondent to the appeal.

8    We will now summarise the circumstances of the appellant’s claim against the Commonwealth.

THE APPELLANT’S CASE AT TRIAL

9    On 18 April 2011 the Department of Immigration and Citizenship (the Department) advised the appellant that his request for Refugee Status Assessment had been granted and that he was recognised as a refugee within the meaning of the Convention relating to the Status of Refugees (1951) as amended by the Protocol relating to the Status of Refugees (1967) (Refugees Convention). He was eligible for a protection visa, subject to health, identity, security and character checking processes.

10    On 15 May 2011 the appellant was taken to the Melbourne Immigration Transit Accommodation facility (MITA). There he remained until 21 August 2011. From 22 August 2011, he was detained at the Darwin Airport Lodge facility until 29 November 2011 when he was taken back to MITA where he remained until 20 January 2012 when he was brought to the Adelaide Immigration Transit Accommodation facility. He remained there during the course of the trial.

11    At trial the appellant’s case of negligence was presented on two bases. The first, and the only basis now pressed, was that the respondent, by keeping the appellant in these detention facilities, in an “environment of incarceration”, as it was described by Professor Jureidini, one of the medical witnesses who gave evidence for the appellant, breached its duty to take reasonable care for his safety. The appellant sought an injunction by way of relief against further detention in such conditions. He also claimed damages for his injuries. It may be noted here that the appellant did not seek to compel the Minister to exercise the power conferred by s 197AB of the Act.

12    By virtue of s 196(3) of the Act, an unlawful non-citizen may not be released from immigration detention unless he or she is granted a visa under the Act. In Minister for Immigration and Multicultural and Indigenous Affairs v VFAD (2002) 125 FCR 249 at [106] the Full Court of the Federal Court said:

It is plain that s 196(3) is intended to limit the power of a Court by preventing it from ordering the release of persons who are unlawful non-citizens.

13    At the time of trial, although the appellant’s status as a refugee was established, the appellant had not been (and it was then thought could not have been) granted a protection visa. That was because in December 2011 he was the subject of an adverse security assessment by the Australian Security and Intelligence Organisation (ASIO) under the provisions of the Australian Security Intelligence Organisation Act 1979 (Cth) (the ASIO Act). Under cl 866.225 of Sch 2 of the Migration Regulations 1994 (Cth) (Regulations) the adverse security assessment meant that the appellant could not be granted a protection visa. On 5 October 2012 the High Court declared cl 866.225 to be pro tanto invalid: Plaintiff M47/2012 v Director-General of Security [2012] HCA 46 (5 October 2012) (Plaintiff M47).

14    On the grant of a visa to the appellant, his way to release from immigration detention would be open. As a result of the decision in Plaintiff M47, the adverse security assessment ceased to be an absolute bar to the grant of a protection visa. A refusal of a protection visa by the Minister would be susceptible to review under s 500(1)(c) of the Act: see Plaintiff M47 at [163]. We mention this circumstance because it would seem that the pursuit of the injunction is not the only avenue of relief from detention available to the appellant.

injunctive relief

15    Over the course of the litigation, the appellant’s claim for an injunction has been formulated in a number of ways. The current iteration in the notice of appeal seeks:

Until the release of the Appellant on a visa or the removal of the Appellant from Australia an injunction be granted restraining the Respondent from:

a.    Detaining the Appellant at the Melbourne Immigration Transit Accommodation.

b.    Removing the Appellant to an Immigration Detention Centre, an Immigration Residential Housing facility or an Immigration Transit Accommodation facility.

c.    Detaining the Appellant in an Alternative Place of Detention that does not have residential facilities staffed by suitably qualified health workers and/or social workers in a supportive residential-or family-based environment.

d.    Detaining the Appellant without access to suitably qualified psychiatric, clinical psychological and mental health facilities and treatment as recommended from time to time by a psychiatrist…

16    The appellant’s claim is novel. In the leading Australian textbook, Meagher, Heydon and Leeming, Meagher Gummow and Lehane’s Equity: Doctrines and Remedies (LexisNexis Butterworths, 4th ed, 2002), at (21-115), it is said that “there is no known case of an injunction being granted to restrain the commission of the tort of negligence.” The text is speaking of a final, not an interlocutory, injunction. That the appellant’s case is novel does not mean that it must fail; but it does, however, tend to suggest that the appellant’s pursuit of an injunction to avoid the harmful consequences of his detention may not be without its difficulties. These difficulties are both general in nature as well as particular to the circumstances of the appellant’s case.

17    As a general matter, in Aronson, Dyer and Groves, Judicial Review of Administrative Action, (Lawbook Co, 4th ed, 2009) the learned authors observe at 928 that in Australian law there is “no equivalent of America’s structural injunction, partly because of equity’s traditional reluctance to commit to long term supervision of its orders, and partly because of the risk of transgressing the separation of powers.”

18    So far as the particular circumstances of this case are concerned, it is to be noted that the injunctive orders sought by the appellant are couched in negative terms. This reflects the difficulty that the appellant’s case, both at first instance and on appeal, did not identify permissible detention arrangements which would achieve a significant alleviation of the appellant’s disorder. It is to be borne in mind that the appellant’s detention is required by statute. To the extent that his disorder is attributable only to lawful detention, it could not give rise to liability in tort.

19    It is well-established that a gaoler owes a duty of care under the common law to exercise reasonable care for the safety of a person held in custody: Howard v Jarvis (1958) 98 CLR 177 at 183; Behrooz v Secretary of the Department of Immigration and Multicultural and Indigenous Affairs (2004) 219 CLR 486 at [174] (Behrooz). But that obligation is not a guarantee of the safety of the detainee; it is an obligation of reasonable care to avoid harm to the detainee whether that harm be inflicted by a third person or by the detainee himself or herself. The risk of harm to the detainee is not the only matter to be considered in assessing whether reasonable care has been exercised: a consideration which must be addressed is the need to ensure effective detention in accordance with the law. That consideration is significant in this case having regard to the appellant’s adverse security assessment.

20    As will be seen, the arguments advanced on the appellant’s behalf do not resolve these difficulties. Before moving to explain why that is so, we should at this point set out the relevant statutory framework within which the appellant’s case falls to be determined.

statutory framework

21    Section 189 is relevantly in the following terms:

189 Detention of unlawful non-citizens

(1) If an officer knows or reasonably suspects that a person in the migration zone (other than an excised offshore place) is an unlawful non-citizen, the officer must detain the person.

…

(5) In subsections (3), (3A) and (4) and any other provisions of this Act that relate to those subsections, officer means an officer within the meaning of section 5, and includes a member of the Australian Defence Force.

22    The expression “detain” in s 189 of the Act is defined in s 5(1) to mean “take into immigration detention or to keep, or cause to be kept, in immigration detention.”

23    “Officer” is defined in s 5(1) of the Act as:

(a) an officer of the Department, other than an officer specified by the Minister in writing for the purposes of this paragraph; or

(b) a person who is an officer for the purposes of the Customs Act 1901, other than such an officer specified by the Minister in writing for the purposes of this paragraph; or

(c) a person who is a protective service officer for the purposes of the Australian Federal Police Act 1979, other than such a person specified by the Minister in writing for the purposes of this paragraph; or

(d) a member of the Australian Federal Police or of the police force of a State or an internal Territory; or

(e) a member of the police force of an external Territory; or

(f) a person who is authorised in writing by the Minister to be an officer for the purposes of this Act; or

(g) any person who is included in a class of persons authorised in writing by the Minister to be officers for the purposes of this Act, including a person who becomes a member of the class after the authorisation is given.

24    It can be seen that an “officer” for the purpose of keeping an unlawful non-citizen in “immigration detention” includes “a person who is authorised in writing by the Minister to be an officer for the purposes of this Act.”

25    “Immigration detention” is defined by s 5(1) of the Act as follows:

(a)    being in the company of, and restrained by:

(i)    an officer; or

(ii)    in relation to a particular detainee—another person directed by the Secretary to accompany and restrain the detainee; or

(b)    being held by, or on behalf of, an officer:

(i)    in a detention centre established under this Act; or

(ii)    in a prison or remand centre of the Commonwealth, a State or a Territory; or

(iii)    in a police station or watch house; or

(iv)    in relation to a non-citizen who is prevented, under section 249, from leaving a vessel—on that vessel; or

(v)    in another place approved by the Minister in writing;

but does not include being restrained as described in subsection 245F(8A), or being dealt with under paragraph 245F(9)(b).

Note 1:    See also section 198A, which provides that being dealt with under that section does not amount to immigration detention.

Note 2:    This definition extends to persons covered by residence determinations (see section 197AC).

(Emphasis in original.)

26    It can be seen that immigration detention may be effected by an officer holding a person in a place, other than the places specified in (b) of the definition, where that other “place has been approved by the Minister in writing.”

27    The Minister has the power to make a determination under s 197AB of the Act which enables a person to reside at a place specified in the determination “instead of being detained at a place covered by the definition of immigration detention.” On 30 December 2011, the Minister declined to consider the exercise of the power in s 197AB of the Act to allow the appellant to reside in the community pending the determination of his application for a protection visa. The Minister’s decision was made having regard to the appellant’s adverse security assessment.

28    Section 197AB is in the following terms:

(1)    If the Minister thinks that it is in the public interest to do so, the Minister may make a determination (a residence determination) to the effect that one or more specified persons to whom this Subdivision applies are to reside at a specified place, instead of being detained at a place covered by the definition of immigration detention in subsection 5(1).

(2)    A residence determination must:

(a)    specify the person or persons covered by the determination by name, not by description of a class of persons; and

(b)    specify the conditions to be complied with by the person or persons covered by the determination.

(3)    A residence determination must be made by notice in writing to the person or persons covered by the determination.

29    Section 197AC is referred to in Note 2 to the definition of “immigration detention”. Subsections (1), (2) and (3) of that section provide as follows:

(1)    While a residence determination is in force, this Act and the regulations apply (subject to subsection (3)) to a person who is covered by the determination and who is residing at the place specified in the determination as if the person were being kept in immigration detention at that place in accordance with section 189.

(2)    If:

(a)    a person covered by a residence determination is temporarily staying at a place other than the place specified in the determination; and

(b)    the person is not breaching any condition specified in the determination by staying there;

then, for the purposes of subsection (1), the person is taken still to be residing at the place specified in the determination.

(3)    Subsection (1):

(a)    does not apply for the purposes of section 197 or 197A, or any of sections 252AA to 252E; and

(b)    does not apply for the purposes of any other provisions of this Act or the regulations that are specified in regulations made for the purposes of this paragraph.

30    By virtue of s 197AE of the Act, the Minister does not have a duty to consider the exercise of the power conferred by s 197AB.

THE DECISION OF THE PRIMARY JUDGE

31    The appellant’s case was that reasonable care for his mental health required detention in a setting more benign than the “environment of incarceration” in the facilities where he has been detained. This expression was used by Professor Jureidini to include: “the guards, the bureaucratic cruelty, the exposure to other people’s distress, all those things”. The appellant’s case was that the Commonwealth was duty-bound to devise and implement a form of detention which would not have been deleterious to his health.

32    One form of accommodation which would have been less harmful to the appellant, and which was identified in the appellant’s case, was that provided by the Hotham Mission. Professor Jureidini identified the possibility of accommodating the appellant in a house supported by the Hotham Agency, staffed by mature carers who have an educative as well as a supervisory role, as appropriate. Professor Mullen, who was called by the respondent, gave evidence to similar effect.

33    The primary judge said at Reasons [65]-[66]:

Again, Professor Jureidini expressed an opinion about the effect of the place of detention on the applicant’s mental condition. He said that the applicant did not require any special environment or hospitalisation, but that it would be therapeutic for him to be in an environment “where he is free to come and go as he pleases and has appropriate social supports”.

Professor Jureidini said that the major cause of the applicant’s mental condition was his “detention experience”. In his oral evidence-in-chief he described what he meant by that expression and he said that he was referring to intrusive searches, inspection and monitoring by staff and the frustration caused by the bureaucracy associated with being in detention. Professor Jureidini said that the proper treatment was removal to a more appropriate environment which he described in various ways, including a family-type environment and an environment where he had older people around him who would guide and nurture him. Professor Jureidini said that placing a person who is a suicide risk on close watch is likely to exacerbate their mental problems rather than alleviate them.

34    Evidence was given on behalf of the respondent by Mr Gregory Kelly, an officer of the Department, as to the various forms of detention that are available for the purposes of the Act, and as to his opinion as to the form of detention most appropriate for the appellant. His Honour decided the case without the need to reach a conclusion as to whether Mr Kelly’s opinion should be accepted.

35    The evidence of Ms Pamela Curr, a witness called on behalf of the appellant, was that the Hotham Mission’s facilities are not guarded. The primary judge, at Reasons [53], accepted Mr Kelly’s evidence that the Hotham Mission has provided accommodation pursuant to determinations made under s 197AB of the Act.

36    His Honour made the following findings of fact at Reasons [84]-[86]:

84    First, the applicant has a psychiatric illness which is either a major depressive disorder or an adjustment disorder accompanied by depressed mood, anxiety, and behavioural disturbances. … The precise diagnosis was not a prominent feature of either party’s case and there was no extended cross-examination of Professor Jureidini or Professor Mullen which might assist me in reaching a clear conclusion. … I am able to conclude that the applicant has a psychiatric illness which fluctuates in terms of symptoms and which is of sufficient seriousness to lead to acts of self-harm from time to time and an attempt to commit suicide. As Professor Mullen said, if the applicant is held in detention on an ongoing basis it is inevitable that his mental state and behaviour will again deteriorate and “there is a real risk that he would once again engage in a potentially lethal suicide attempt”.

85    Secondly, the applicant’s psychiatric illness results from a number of factors, including his traumatic upbringing, illicit substance dependence and withdrawal, the imprisonment of his father in Indonesia and traumas associated with his detention since his arrival in Australia in December 2010. The primary cause of his present psychiatric illness is his detention and what Professor Jureidini referred to as the detention or incarceration environment. A further contributing factor in 2011 was the fact that he had been assessed as having refugee status, but prior to being advised of the adverse security assessment in December 2011, was uncertain about when he might be released and, after the assessment, knew that he could be detained indefinitely.

86    Thirdly, the only effective treatment for the applicant’s condition is release from the detention or incarceration environment. There were many statements of a general nature about the environment which would eliminate those circumstances which are presently contributing to the applicant’s mental illness. The effect of the evidence is that those circumstances would be eliminated if he was in a place where he was free “to come and go as he pleases and has appropriate social supports” (see above at [65]). Other than a residence determination under s 197AB of the Act, the applicant was not able to identify a place or a precise set of circumstances which would eliminate the causative factors. Professor Mullen said that the “big problem” was the applicant’s loss of freedom and the uncertainty as to his future and that “anything that moves towards giving him greater freedom and greater hope for the future will improve the outcome”. The applicant built an argument on this statement to the effect that the Commonwealth was in breach of its duty of care in not moving the applicant to an environment which would provide him with greater freedom, albeit not one in which he is free to come and go as he pleases.

37    The primary judge analysed the appellant’s case on the orthodox basis that damage is the gist of the cause of action in negligence and the onus of proof of damage is upon the plaintiff. In this regard, his Honour said at Reasons [106]-[107]:

106    The applicant’s … case is that the level of medical care reasonably designed to meet his health care needs requires detention in a community setting and that the Commonwealth’s failure to arrange that is a breach of its duty of care. I will need to come back to what is meant by “community setting” because it is a very important point having regard to the facts of this case. For present purposes, I will simply refer to detention in a community setting to contrast it with detention in a place such as MITA. The applicant submitted that it was foreseeable to the Commonwealth that detaining the applicant in a formal detention environment may lead to him suffering mental harm. It relied on general evidence of the effects of detention on minors and evidence specific to the applicant.

107    The applicant did not attempt to identify the point at which the possibility of mental harm became reasonably foreseeable, or the point at which he first suffered mental harm. It is enough for me to find that by … 17 August 2011, if not before, it would have been reasonably foreseeable to the Commonwealth that continued detention in MITA or similar places could cause mental harm to the applicant. However, the question is whether the Commonwealth was under a duty to take steps to avert the risk of harm by transferring the applicant to the form of detention he now seeks. The answer to that question is informed by the statutory provisions which authorise the detention of the applicant.

38    The primary judge at Reasons [108] summarised the appellant’s case as it had developed at trial, and the nub of the respondent’s reply to the appellant’s case:

    The Commonwealth submitted that it did not have the power under paragraph (b)(v) of the definition of immigration detention in subs 5(1) of the Act to transfer the applicant to the form of detention now sought. It pointed to the fact that the applicant had not sought a residence determination under s 197AB and submitted, correctly in my view, that the Minister could not be compelled to make such a determination. The Commonwealth’s submission does not quite meet the applicant’s case as it developed. The fact that the Commonwealth made the submission is entirely understandable in view of the medical evidence and the general nature of the injunctive order sought by the applicant. However, as I understood the applicant’s argument it was that the Commonwealth could devise a form of detention under paragraph (b)(v) of the definition of immigration detention which recognised being held by, or on behalf of, an officer and the adverse security assessment, but at the same time, meant that he was in the community. The following exchanges occurred in the course of Mr Kelly’s cross-examination.

So if the applicant says, ‘I don’t want MITA and I don’t want Sydney. I don’t care if I have two or three guards or one guard. I want to be in a more residential type environment, with, perhaps, carers around me’. The applicant says that and the doctors indicate that that would be better for his health. You would defer to that? … No. I would take that into account, your Honour. It’s not the sole factor in determining an accommodation placement for an individual. We would take a range of factors into account.

…

That he couldn’t be locked in a house with a Serco guard at the front door, but he received treatment in a therapeutic environment. He couldn’t do that? … Your Honour, the issue about restrictive detention, if he is locked in a house, that is a far more restrictive environment than in the Darwin Airport Lodge, where there is a perimeter fence and he is able to move freely within the facility.

So it was just a question of, ‘well, there’s nothing that’s available apart from the places he has been placed in’? … That’s probably fairly accurate your Honour.

…

There wasn’t any question of designing an appropriate environment that might fit his needs and the needs of the Australian community? … There was consideration broadly given, but in terms of the preferred options, at least the department believed the preferred options open were the ones that I have outlined in the affidavit, your Honour.

39    As to the primary judge’s concern that the case advanced on behalf of the appellant did not identify a specific set of arrangements which, while satisfying the requirements of immigration detention, would at the same time alleviate the appellant’s psychiatric disorders, his Honour said at Reasons [109]:

109    The applicant does not identify the precise form of detention he seeks in the injunctive order he claims. Nor did he do so in the evidence or in the submissions, other than general examples such as a residential house with a guard, or possibly two guards.

40    The primary judge noted that the appellant did not seek relief by way of a residence determination under s 197AB of the Act. His Honour held that on the proper construction of the definition of immigration detention in s 5(1)(b)(v) of the Act, the powers implicit in that definition could not be used to achieve the benign form of accommodation contemplated by s 197AB of the Act. In this regard, his Honour said at Reasons [111]-[113]:

111    First, the power in paragraph (b)(v) could not be exercised in a way which had an effect similar to a residential determination under s 197AB. They are two different powers. One involves a form of immigration detention, or holding by, or on behalf of, an officer (that is, paragraph (b)(v)), whereas the other involves residence at a place with (subject to some exceptions) the Act and regulations applying as if the person is being kept in immigration detention (s 197AB).

112    Secondly, I do not think the “other place” within paragraph (b)(v) need be a formal institutional place like MITA. While it may be something different from that, it must still be a place where a person can be said to be held by, or on behalf of, an officer. To the extent that the Commonwealth submitted that the place for the purposes of paragraph (b)(v) must be a formal institutional place (to be fair to the Commonwealth, I am not sure it went that far), I reject the argument. I do accept the Commonwealth’s submission that a person in a place approved under paragraph (b)(v) would need to be guarded, and in view of the adverse security assessment, the extent of the security measures would be a matter for the Commonwealth.

113    Thirdly, I think the nature of the power in paragraph (b)(v) and the considerations relevant to its exercise, are such that the Commonwealth (or the Minister) would not be in breach of any duty of care for failing to exercise the power. Many considerations might be relevant to the exercise of the power, including cost considerations, the ready availability of other services in a residential setting, and security considerations associated with an adverse security assessment. As far as cost considerations are concerned, it is not a matter of the Court declining to make the order sought by the applicant because Mr Kelly’s rather general evidence was that it would be a good deal more costly to house the applicant in the manner he seeks rather than at a place like MITA. The significant matter is that cost considerations are relevant to the exercise of the power in paragraph (b)(v). It seems to me that it is not possible to formulate the practical content of a duty to exercise the power in paragraph (b)(v) (Crimmins v Stevedoring Industry Finance Committee (1999) 200 CLR 1 at 13 [5] per Gleeson CJ).

41    The primary judge distinguished Secretary, Department of Immigration and Multicultural and Indigenous Affairs v Mastipour (2004) 207 ALR 83 (Mastipour) and S (2005) 143 FCR 217 from the circumstances of the present case. The primary judge said at Reasons [117]:

The decisions in Mastipour and S go some way towards supporting the applicant’s argument. They support the proposition that the scope of the Commonwealth’s duty of care may include a duty to transfer a detainee from place A to place B where the only or primary consideration is the mental health needs of the detainee. It is another step to hold that the scope of the Commonwealth’s duty of care includes a duty to devise a form of detention under paragraph (b)(v). That is a step which should not be taken for reasons I have given. The applicant’s form of detention case must fail.

42    His Honour held that the appellant had failed to identify the elements of an alternative form of detention under paragraph (b)(v) which would be likely to result in a material improvement in his health. His Honour considered the effect of the evidence was that a cause of the appellant’s psychiatric illness is the environment of incarceration, and that the circumstances contributing to the appellant’s mental illness would be relieved in a significant way only if the appellant was accommodated in a place where he was free “to come and go as he pleases and has appropriate social supports”. This could occur via a residential determination under s 197AB of the Act; but the appellant did not claim any breach on the part of the respondent by reason of the Minister’s failure to make a residence determination in his favour, and had not identified an alternative regime of detention which would have the same effect. In this regard, his Honour said at Reasons [118]:

118    The applicant’s form of detention case must fail for another quite independent reason. The applicant has established that community detention under s 197AB of the Act, where the applicant is free to come and go as he pleases, would improve his mental health in a material way. That conclusion is established by the evidence of Professors Jureidini and Mullen. He is not claiming any breach by the Commonwealth by reason of a failure to make a residence determination. The applicant has not established that the alternative form of detention which he has identified in a very general way would improve his mental health in a material way. Having regard to the evidence as a whole, general evidence of the type given by Professor Mullen, and referred to above (at [82] first sentence) does not establish that proposition.

THE GROUNDS OF APPEAL

43    The appellant contends that the primary judge erred in:

1.    holding that the power contemplated by paragraph (b)(v) of the definition of “immigration detention” in s 5(1) of the Act could not be exercised in a way which had an effect similar to a residential determination under s 197AB of the Act;

2.    determining that the only way that the appellant could be detained consistently with the provision of an environment harmless to the appellant, was by making a residential determination pursuant to s 197AB of the Act;

3.    in finding that the scope of the duty of care owed by the respondent did not require it to provide the appellant with a form of detention that would not cause him foreseeable harm;

4.    in finding that the appellant did not establish that the alternative form of detention he identified would improve his mental health in a material way; and

5.    in refusing the injunction sought by the appellant.

44    The arguments agitated in support of these grounds of appeal overlap. That is especially so in relation to grounds 1 and 2, and so we will deal with them together. Otherwise, we will discuss the grounds of appeal in turn.

GROUNDS 1 AND 2

The Parties’ Arguments

45    The appellant contends that the primary judge failed to consider evidence which suggested that a range of people, less confronting than the Serco guards who had been deployed to guard the appellant, might be declared “officers” for the purposes of detention; that an ordinary household could be declared a place of detention within s 5(1)(b)(v); and that the adult members of the household could be declared “officers”.

46    In particular, the appellant submits that the primary judge erred in failing to conclude that immigration detention under s 5 of the Act could be effected, as a practical matter, at a facility operated by the Hotham Mission on the basis that a person from Hotham Mission could be appointed as an “officer”; and that the appellant could be detained by that officer in the sense that his movements could be monitored or controlled although he would not actually be incarcerated within the facility.

47    The respondent argues that the appellant’s submission fails to recognise that s 5(1)(b)(v) requires “detention”; that is, being restrained by, or on behalf of an officer, or being held by an officer in a place approved by the Minister. Detention so understood will, on the evidence, inevitably involve the factors which contribute to the appellant’s disorder. The respondent contends that the primary judge was correct in accepting Mr Kelly’s evidence to the effect that neither being accommodated by the Hotham Mission nor being accompanied and supervised by a lay person, albeit one designated as an “officer”, would detain the appellant. That is said to be especially so, given the interests of the Australian community in light of the appellant’s adverse security assessment.

Consideration

48    To the extent that the appellant has been detained as statute requires, or in the valid exercise of an administrative power, the respondent’s conduct cannot give rise to a liability in tort: Northern Territory v Mengel (1995) 185 CLR 307 at 356.

49    The appellant has not sought to make a case that any of the decisions which have been made by the Minister as to the modes of immigration detention in which the appellant has been kept was invalid. It is not the appellant’s case that his detention is unlawful in the sense that the administrative decisions made as to the persons by whom and places at which he is held are invalid. In this regard, Ryan J said in VLAH v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 1554 at [9]-[10]:

…

In my view the selection of a particular mode of detention is invalid only if it goes outside the definition of “immigration detention” in s 5 of the Act or if it is made for some ulterior purpose like the punishment of the non-citizen. …

… [T]he flexibility in the selection of a mode and place of detention which the various…definitions [in s 5] afford does not, by implication, restrict the Minister’s choice in a particular case or impose any statutory duty to consider alternative modes of detention.

50    No attempt was made on behalf of the appellant to suggest that the Minister’s decision-making was vitiated by lack of good faith, the pursuit of an improper purpose, or irrationality. Further, Mr Kelly’s evidence was inconsistent with such a suggestion. There is no issue as to the validity of the administrative action whereby the appellant has been kept in immigration detention.

51    It is also necessary to bear in mind that, at first instance, the appellant presented a case that, quite apart from the form of his detention, the respondent had failed to provide reasonable care for his health needs. That case was rejected by the primary judge; and from that decision there has been no appeal. These circumstances distinguish this case from S (2005) 143 FCR 217 and Mastipour (2004) 207 ALR 83. In each of these cases, Finn J was concerned with the varying quality of medical care available to a detainee at different detention centres, whereas this Court is concerned with the proposition that the respondent is duty-bound to devise a form of immigration detention which obviates the effect on the appellant of those features of incarceration which are characteristic of detention.

52    Being validly in detention, the appellant has lawfully been deprived of his liberty. In Behrooz (2004) 219 CLR 486 at [21] Gleeson CJ said:

Whatever the conditions of detention, the detention itself involves involuntary deprivation of liberty … [F]or an alien, the detention is an incident of the exclusion and deportation to which an alien is vulnerable. … If those who manage a detention centre fail to comply with their duty of care, they may be liable in tort. But … the negligence does not alter the nature of the detention …

53    The appellant argues that provided that a detainee is kept in the company of one or more designated people, or otherwise in a designated location, the detainee remains in immigration detention, and that the words “restrained” and “held” in the definition of “immigration detention” do not require restraint under guard or physical incarceration. The appellant’s arguments, that these requirements could be satisfied by warnings given to a detainee by the officer or delegate that the detainee would be committing an offence by leaving a designated place unaccompanied by a designated officer, accompanied by undertakings from the detainee to remain at the place or in the company of an officer, fail to pay sufficient regard to the terms in which “immigration detention” is defined.

54    Immigration detention under the Act involves “restraint by an officer” while a detainee is in that officer’s company, or “being held by, or on behalf of, an officer” in one of the places described in (b) of the definition of immigration detention. That means confinement in a facility and restrictions upon the movements of the detainee so that the detainee is not free to come and go as he or she pleases. Detention necessarily involves the loss of personal liberty, and, usually, of the right to privacy as well: Behrooz (2004) 219 CLR 486 at [13]; Re Woolley; Ex parte Applicants M276/2003 (2004) 225 CLR 1 at [5], [222]-[224].

55    To the extent that the medical evidence was to the effect that the appellant’s condition could be substantially improved by allowing him to come and go as he pleased and to live without the presence of guards, and in a supportive family environment, it is difficult to regard the loss of these amenities as other than a usual incident of detention. A more relaxed form of accommodation, especially one with no constraint on the appellant’s ability to come and go as he pleases, is not available under s 5(1)(b)(v) of the Act. Immigration detention involves, in terms, restraint by an officer and being held by or on behalf of an officer, in a place. And to the extent that the appellant’s psychiatric disorder is attributable to the uncertainties relating to his claim to a refugee visa, these uncertainties are not caused by his detention.

56    The appellant argues that, as suggested in McLean v Tedman (1984) 155 CLR 306 at 314 by Mason, Wilson, Brennan and Dawson JJ, where “ … the [plaintiff] is able to point to an alternative and safe system which is practicable in other respects and would have obviated the relevant risk of injury,” the onus shifts to the respondent to show why, in the exercise of reasonable care, that alternative system has not been, or should not be, adopted. But the approach articulated in McLean v Tedman contemplates that the plaintiff does indeed point to an alternative system which would have obviated the risk of harm to him.

57    In this case the appellant did not present a coherent case of an alternative mode of detention which could feasibly have been adopted as a mode of “immigration detention”, and which would have alleviated his disorder. Indeed, the appellant’s case did not even include evidence from potential “officers” that they were ready, willing and able to accompany and, if necessary, to restrain the appellant or to hold him in a place approved by the Minister against his will. Rather than evidence of the willingness and ability of identified persons to exercise the degree of restraint over the appellant to effectuate detention, the appellant’s case rose no higher than the suggestion that “restraint” could be effected by warnings that to escape custody would be to commit an offence.

58    It does not avail the appellant to say that Mr Kelly acknowledged that private citizens have filled the role of “officer” for various detainees in the past, or that the appellant had been allowed out of MITA for day trips and excursions in the company of persons other than Serco guards. These examples do not relate to detainees who are subject to adverse security assessments; and more importantly, they do not address the crucial question of the ability or willingness of such persons to keep the appellant in detention against his will.

59    To criticise the primary judge for erroneously treating s 197AB as excluding the possibility of devising a less damaging form of detention in exercise of the powers of decision postulated by the definitions of “immigration detention” and “officer”, is to fail to appreciate that his Honour was dealing with an invitation to treat the respondent as duty-bound to cause the circumstances in which the appellant is being held to be relaxed to the degree that it would give rise to a state of affairs which is, for practical purposes, that contemplated by s 197AB of the Act. Such a state of affairs is not contemplated by the requirement or the detention of the appellant.

60    The burden of proof in this regard was upon the appellant because proof of these matters is essential to the cause of action which he seeks to advance. In this regard, the appellant failed to demonstrate that the Minister should, acting reasonably, appoint members of any given household as “officers” for the purpose of the Act. The appellant failed to make a case that particular individuals could and would act as “officers” for the purpose of restraining the appellant and holding him in detention.

61    For these reasons we would reject these grounds of appeal.

GROUND 3

The Parties’ Arguments

62    The appellant submits that the primary judge erred in holding that the nature of the power contained in s 5(1)(b)(v) of the Act, and the considerations relevant to its exercise, were such that the respondent did not breach its duty of care to the appellant. The primary judge should have recognised that the “package of harm” to which the appellant was exposed – incarceration, guards, bureaucratic cruelty, exposure to other people’s distress – put the appellant’s mental health at risk, and should then have treated the appellant’s adverse security assessment as of no moment. On the appellant’s behalf it is argued that an adverse security assessment, the grounds of which are unknown to the appellant and the Court, cannot be used to support the proposition that the interests of the Australian community require that the appellant must be kept in an environment of incarceration which may result in his death by his own hand.

63    The respondent submits that appellant is wrong to deny the relevance of the appellant’s adverse security assessment.

Consideration

64    Underlying the appellant’s argument is an unstated assumption that the respondent may be made liable in tort on the footing that the powers implicit in the definition of “immigration detention” can properly be, and indeed must be, exercised to achieve a form of detention so benign to the detainee that it is not recognisable as immigration detention under the Act. A principal difficulty with the appellant’s argument is that, as the primary judge held at Reasons [118], the appellant “has not established that the alternative form of detention which he has identified in a very general way would improve his mental health in a material way.”

65    To the extent that it is said that something in the nature of residential accommodation could, and should, have been devised and implemented, it is a fatal deficit in the appellant’s case that there was no coherent articulation of the arrangements which, while not allowing the appellant to come and go within the community free of compulsory restraint, would nevertheless reduce the adverse effects of detention in a way which would significantly improve the appellant’s mental health.

66    Next, his Honour accepted that, by reason of the adverse security assessment of the appellant, the appellant would need to be accompanied by and restrained by security guards while out and about, and that the entry to and egress from his residence would need to be guarded in order to accommodate security concerns. The central thrust of the argument, as developed orally on the appellant’s behalf at the hearing, was that because the respondent declined to make the adverse ASIO assessment of the appellant available to the Court, it should not be permitted to suggest that security concerns relating to the appellant be balanced against the obvious risk of harm to the appellant. Alternatively, it was said that the respondent bore the onus of showing why the appellant should have been subject to those features of detention which adversely affected his mental health.

67    These arguments were put forward on the footing that the factual basis for the appellant’s adverse security assessment was not disclosed to the Court. It was said that, because the respondent chose to withhold the reasons for the adverse security assessment from the Court, the Court should give that assessment no weight in assessing the reasonableness of the arrangements adopted for the appellant’s detention.

68    On 23 March 2012 in SBEG v Secretary, Department of Immigration and Citizenship [2012] FCA 277, the primary judge decided that information concerning the appellant’s adverse security assessment was properly the subject of public interest immunity from disclosure. There has been no appeal against that decision of the primary judge. There being no appeal from the decision of the primary judge to uphold the claim to immunity from disclosure as a matter of public interest, this Court must proceed on the basis that the claim was rightly upheld. Although it was the case that the respondent raised the claim of public interest immunity, if it had not, it would have been incumbent on the Court to raise that claim, as a matter of public interest, even though it had not been raised by the parties. That being so, this Court should not draw an inference adverse to the respondent by virtue of the non-disclosure of the basis for the adverse security assessment, much less should this Court reverse the onus of proof on the issue of negligence by denying the relevance of the adverse security assessment.

69    In these circumstances, it may be accepted that the respondent owed the appellant a duty to take reasonable care for his safety in detention; but to say that is not to advance the appellant’s case very far when regard is had to the appellant’s adverse security assessment. And in any event, the assessment of reasonable care takes place in the context of the need for compliance with the statutory requirement of immigration detention.

70    In this regard, in Crimmins v Stevedoring Committee (1999) 200 CLR 1 (Crimmins) at [5] Gleeson CJ said:

Acceptance that a statutory authority, in the discharge of its functions, owed a duty of care to a person, or class of persons, is only the first step in an evaluation of the authority’s conduct for the purpose of determining tortious liability. In some cases, the difficult of formulating the practical content of a duty to take reasonable steps to avoid foreseeable risks of harm, for the purpose of measuring the performance of an authority against such a duty, may be a reason for denying the duty. In other cases, of which the present is an example, recognition of the existence of a duty is consistent with the need, when dealing with the question of breach, to take account of complex considerations, perhaps including matters of policy, resources and industrial relations.

71    In Crimmins at [270]-[271], Hayne J explained:

The fact that the Authority is a statutory body given statutory discretions does not prevent the application of ordinary principles of the law of negligence. But the courts have often found the task of identifying the duty of care that is owed by a statutory body to be difficult. To whom is the duty owed? What is the content of the duty?

There are several reasons why the task is difficult. As Gummow J pointed out in Pyrenees Shire Council v Day, a person claiming against a public body with statutory powers seeks “to translate the public law ‘may’ into the common law ‘ought’”. Should the courts (and can the courts) distinguish between policy and operational decisions of statutory bodies? Is the distinction between non-feasance and misfeasance relevant? Does it matter that the constituting statute gives a body some statutory duties and then, in different language, gives it some statutory powers? Is the body to be liable in negligence when it does not use the powers it was given but was under no statutory duty to use them (or perhaps even to consider their use)? All these, and more, are questions that may arise.

(Footnotes omitted.)

72    In our respectful opinion, the primary judge did not err in being unable to discern a satisfactory answer to these questions in the case advanced by the appellant.

73    For these reasons, we would reject this ground of appeal.

GROUND 4

The Parties’ Arguments

74    The appellant contends that, given that the respondent has the power to place the appellant in a community-based form of detention under s 5(1)(b)(v), and that it is foreseeable that a failure to exercise that power is likely to be fatal, the respondent’s failure to exercise the power constitutes a breach of its duty of care.

75    The respondent argues that the appellant’s case must fail in that the appellant failed to adduce evidence about the elements of a form of detention which would eliminate the factors which impair his mental condition. The respondent relies upon the primary judge’s findings at Reasons [118] to the effect that the appellant’s mental health would benefit from a form of detention under s 197AB.

Consideration

76    The appellant did not contend that the respondent’s failure to make a residence determination was a breach of its duty of care. On the appellant’s behalf, heavy emphasis is placed on the evidence of Professor Mullen that “the more freedom he has, the less damage and the less pressure he will be placed on” [sic] to support the proposition that the more factors such as fences, barbed wire, the presence of confronting guards, the perception of bureaucratic cruelty or indifference, and the exposure to other’s suffering, can be reduced or eliminated, the greater the prospects for effective treatment and recovery. But, on the findings of fact made by the primary judge, there is no significant prospect of improvement to the appellant’s mental health so long as he is in an environment where he cannot come and go as he pleases and while his condition is adversely affected by the uncertainty attending his application for a visa.

77    Even if it be accepted that immigration detention may be regarded, as the appellant urges, as a continuum ranging from an oppressive environment to an unburdensome and unbureaucratic residential and community-based environment, and that the closer the circumstances of the appellant’s detention approaches the benign end of the spectrum, the better his prospects will be, the appellant’s case is deficient in that it fails to identify that suite of arrangements, which could and should have been devised and implemented by the respondent, and which would have resulted in a substantial alleviation of the appellant’s disorder.

78    For the reasons given above, we consider that the appellant has not established a factual basis for concluding that an order which might alleviate his condition could be made consistently with the statutory requirement for his detention. We would reject this ground of appeal.

GROUND 5

The parties’ submissions

79    The appellant seeks an injunction to restrain the continuation of the tort by the respondent. The respondent asserts that this form of relief should not go as a remedy for the tort of negligence; that it would require the continued oversight of the Court; and that it is, impermissibly, in materially different terms to the form of injunction sought at trial.

Consideration

80    It will be apparent that we do not consider that the appellant has made out a cause of action in negligence against the respondent. Accordingly, it is not necessary to reach a conclusion as to whether the injunctive relief sought by the appellant should be granted even if his case were made out. For the sake of completeness, however, we note the difficulty in the way of granting the injunctive relief sought by the appellant.

81    The circumstance that the orders sought by the appellant are framed in negative terms should not be allowed to obscure the reality that compliance with these orders would require ongoing supervision by the Court. The Court would be obliged to assume a role akin to that of an officer responsible for detaining the appellant. The Court should not be drawn into such a role because the Court does not engage in the ongoing supervision of an order or in the exercise of the functions of the executive government.

82    In Glossop v Heston and Isleworth Local Board (1879) 12 Ch D 102 Cotton LJ said at 126 that he would deal with the matter before the Court:

… as if it were a question of a mandatory order, that is to say, a mandamus in the sense of a decree directing the Defendants to perform the duties and obligations thrown upon them by the Act of Parliament in which the Plaintiff has a special interest. Ought we to do that unless we can see either something definite which the Court can direct the Defendants to do …? In my opinion, we ought not to do so … It would be contrary to the course of this Court to make a decree of that nature against the Defendants unless the Court is satisfied that there is some particular mode by which they can … in that way exercise the powers of this Act of Parliament.

83    Even if the terms of the injunctive relief sought were to be reframed so as to specify a regime of detention acceptable to the appellant, the Court would not make an order which would, in the guise of an injunction, go beyond even the scope of mandamus. In Sutherland Shire Council v Heyman (1985) 157 CLR 424 at 465, Mason J rejected the proposition that mandamus could be “regarded as a foundation for imposing … a duty of care on the public authority in relation to the exercise of [a] power. Mandamus will compel proper consideration by the authority of its discretion, but that is all.”

CONCLUSION AND ORDERS

84    The appeal should be dismissed.

85    The appellant should pay the respondent’s costs of the appeal to be taxed unless earlier agreed.

Associate:

Dated:    20 December 2012