FEDERAL COURT OF AUSTRALIA

Minister for Home Affairs v SZRWS [2018] FCAFC 51

ORDERS

THE COURT ORDERS THAT:

1.    The first respondent have leave to withdraw his application for leave to cross-appeal.

2.    The first respondent pay the second respondent’s costs of his application for leave to cross-appeal, as agreed or taxed.

3.    Grant leave to the first respondent to file and rely on his proposed notice of contention, filed on 3 April 2018.

4.    The applicants’ application for leave to appeal is refused.

5.    The applicants pay the first respondent’s costs of their application for leave to appeal, as agreed or taxed.

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

REASONS FOR JUDGMENT

THE COURT:

Introduction

1    There is presently pending before the Federal Circuit Court of Australia a proceeding commenced by a person identified by the pseudonym SZRWS (the present first respondent) against the Minister for Home Affairs, (the Minister, the present first applicant), the Commonwealth of Australia (the Commonwealth, the present second applicant), the Secretary of the Department of Home Affairs (the Secretary, the present third applicant), and Serco Australia Pty Ltd (Serco, the present second respondent). Serco is the corporate entity that manages the detention facility at which SZRWS has been and is detained.

2    Before this Full Court is an application by the Minister, the Commonwealth and the Secretary for leave to appeal from the following order of the Federal Circuit Court made on 22 December 2017:

The first, second and third respondents are restrained by themselves, or their servants or agents, from implementing or continuing to implement the decision evidenced in Australian Border Force Directive 016-2017, being Annexure SC-4 to the affidavit of Sabina Callaghan made on 28 November 2017, in relation to the applicant, insofar as it prevents persons visiting the applicant at the Villawood Immigration Detention Centre from bringing home cooked food to be consumed in the visitors area of the Detention Centre, until the hearing of the principal proceedings herein, or further order in any appellate proceedings arising from this order.

See SZRWS v Minister for Immigration and Border Protection [2017] FCCA 3101.

3    The application for leave to appeal states as its grounds:

1.    The relevant order of the Federal Circuit Court has been made in excess of jurisdiction and/or is otherwise affected by legal error as detailed in the draft Notice of appeal accompanying this application.

2.    Substantial injustice will result from a refusal of leave to appeal.

4    The draft notice of appeal sets out the following proposed grounds of appeal:

1.    The Federal Circuit Court erred in finding that the first respondent’s proceeding below involved an action in negligence.

2.    The Federal Circuit Court below erred in finding that there was a serious question to be tried, constituted by the “cause of action in tort against the Commonwealth”.

3.    The Federal Circuit Court below erred in holding that s 476(1) of the Migration Act 1958 (Cth) confers jurisdiction on the Federal Circuit Court in respect of actions in negligence.

4.    The Federal Circuit Court erred in holding that the policy decision the subject of the proceeding below was “an administrative decision made under an enactment” within the meaning of the Administrative Decisions (Judicial Review) Act 1977.

On the application for leave to appeal, proposed ground 4 was not pressed.

5    There was also an application by SZRWS for leave to cross-appeal on the basis that the primary judge erred in law in holding that the balance of convenience weighed against the granting of an injunction against Serco. The Court was informed on 29 March 2018 that SZRWS intended to withdraw his application for leave to cross-appeal.

6    For the reasons which follow, the applicants’ application for leave to appeal is refused, with costs.

The evidence

7    On their application, the applicants sought to read only one affidavit, that of Sean Emmett O’Connor sworn 5 March 2018 and only paragraphs 1-2, 8-12 and 16 of that affidavit, together with the corresponding annexures. SZRWS objected to the admission into evidence of that material.

8    The Court admitted paragraphs 1-2 and 8-12, with the corresponding annexures, and rejected paragraph 16 and its annexure.

9    The admitted paragraphs concerned Serco receiving letters from other detainees in the detention centre where SZRWS is detained (Villawood) expressing dismay “over the class actions that was instituted by all the detainees over the ‘Home made food prevention Policy,’” whereas an injunction was granted only to SZRWS. The letter listed detainees who intended to bring class actions if the anomalies were not corrected. Another document annexed to the affidavit, a detainee complaint form, informed management to respect and implement the court decision as it affected all the detainees and their families, saying it was unfair and prejudicial if one detainee was given the rights and not all detainees in the detention centre. Mr O’Connor was instructed by Mr Malcolmson, Serco’s Counsel Assisting – Commercial and Litigation, that a total of 171 detainees at Villawood had lodged complaints in relation to the implementation of the injunction at Villawood.

10    SZRWS submitted that the applicants had not complied with r 36.57 of the Federal Court Rules 2011 (Cth) and objected to the entirety of the material on that basis. He did not however claim prejudice from any non-compliance. Assuming that the rule applies to an application for leave to appeal, the Court dispensed with compliance with that rule pursuant to r 1.34.

11    SZRWS also submitted that paragraphs 8-12 and the corresponding annexures were remote hearsay and opinion evidence and was evidence that could have been given at the primary hearing. This last objection could not apply to paragraphs 8-12 as that evidence post-dated the orders of the primary judge made on 22 December 2017. As to the hearsay objection, s 75 of the Evidence Act 1995 (Cth) provides that in an interlocutory proceeding, the hearsay rule does not apply to evidence if the party who adduces it also adduces evidence of its source. This application for leave to appeal is an interlocutory proceeding and the source of the evidence is adduced. As to the opinion evidence objection, the material is not, in our opinion, opinion evidence but evidence of events which have happened.

The primary decision

12    The decision referred to in the order of the Federal Circuit Court was as follows, as written:

From 11 September 2017, the following policy must be implemented across the IDN as per Detention Services Manual Chapter 8 – Items Not permitted in Immigration Detention Facilities and Detention Standard Operating Procedure 64 – Control of Items:

Food – Conditions of Entry

For health, safety and security purposes, visitors wishing to bring food items into the visitors’ area of an IDF may do so if they strictly comply with the following conditions:

•    The food is commercially packaged and labelled, factory sealed, has a visible and valid expiry date and its prescribed name is easily identifiable and complies with the Australia New Zealand Food Standards Code;

•    food is not contained in any metal or glass packaging;

•    the amount of food is proportionate to the needs, duration and intent of the visit;

•    the food is consumed in the visits area only; and

•    any leftover food must be disposed of at the end of the visit or removed from the premises by the visitor.

Additionally:

•    All food brought in by visitors will be screened; and

•    no food brought in by visitors is permitted to enter the accommodation area of the IDF.

…

Birthday cakes and special purpose foods:

Special purpose foods are allowed in the visitors’ area provided that approval has been sought and granted prior to the visit. Special purpose food includes food processed or manufactured for consumption by infants and people suffering medical conditions (e.g. diabetes) that require altered and tailored food, including prescribed medicines or any other products that are regulated as therapeutic goods or food.

13    The primary judge found, at [5], that the decision listed foods that were prohibited and these included:

a)    all perishable foods;

b)    frozen meals;

c)    fresh fruit and vegetables;

d)    tinned food;

e)    home cooked meals.

The application before the primary judge

14    The Further Amended Application before the primary judge, dated 10 November 2017, was in the following terms, so far as relevant:

The applicant applies for an order that the respondents show cause why a remedy should not be granted in exercise of the Court’s jurisdiction under section 476 of the Migration Act 1958, and under s 8(2) of the Administrative Decisions (Judicial Review) Act 1977, in respect of the migration decision…

…

Migration decision details

A decision (the Decision) made by the Respondents, or one or more of them, on or before 4 September 2017, and to take effect from that date, to restrict the food products which might be brought to persons in immigration detention, from visitors to them.

Other Interlocutory, interim or procedural orders sought by Applicant

1.    An interlocutory injunction restraining the Respondents, or their servants or agents, from implementing, or continuing to implement the Decision in relation to the Applicant, until the hearing of the principal proceedings herein, and any appellate proceedings arising therefrom.

Final orders sought by Applicant

1.    A declaration that the Decision was an improper exercise of power by the Respondents, was legally unreasonable, and was in breach of the First Respondent’s non-delegable duty of care to the Applicant.

2.    A permanent injunction, restraining the Respondents, or their servants or agents, from implementing, or continuing to implement the Decision in relation to the Applicant.

Grounds of application …

1.    In implementing, or seeking to have implemented the Decision, the First Respondent breached his non-delegable duty of care to the Applicant.

Particulars

In exercising his powers under s 273 of the Migration Act 1958 (Cth) (the Act), the First Respondent owes the Applicant a non-delegable duty of care. In implementing, or seeking to have implemented the Decision, the First Respondent breached that duty by (i) depriving the Applicant of culturally appropriate food, thereby causing disruption to his religious practices and his usual family visiting day, with the result that he is suffering and will continue to suffer psychological damage; and (ii) causing him to eat food detrimental to his medical condition, namely Chron’s [sic] disease, with the result that he is suffering and will continue to suffer physical damage.

2.    Pursuant to ss 5(1)(e) and 5(1)(j) of the Administrative Decisions (Judicial Review) Act 1977 (Cth) (the ADJR Act), the Decision was an improper exercise of the power conferred upon the First Respondent by s 273 of the Act, and was otherwise contrary to law, the Applicant being a person aggrieved by the Decision.

Particulars

In making the Decision the Respondents took into account irrelevant considerations, and failed to take into account relevant considerations. Further the Decision was unreasonable in that it lacked an evident and intelligible justification, and was disproportionate to the purpose it was designed to achieve.

Key statutory provisions

15    The Federal Circuit Court of Australia Act 1999 (Cth) provides, in ss 10(1) and 18, as follows:

10    Original jurisdiction—general

(1)    The Federal Circuit Court of Australia has such original jurisdiction as is vested in it by laws made by the Parliament:

(a)    by express provision; or

(b)    by the application of section 15C of the Acts Interpretation Act 1901 to a provision that, whether expressly or by implication, authorises a civil proceeding to be instituted in the Federal Circuit Court of Australia in relation to a matter.

18    Jurisdiction in associated matters

To the extent that the Constitution permits, jurisdiction is conferred on the Federal Circuit Court of Australia in respect of matters not otherwise within its jurisdiction that are associated with matters in which the jurisdiction of the Federal Circuit Court of Australia is invoked.

16    Section 15C of the Acts Interpretation Act 1901 (Cth) provides:

15C    Jurisdiction of courts

Where a provision of an Act, whether expressly or by implication, authorises a civil or criminal proceeding to be instituted in a particular court in relation to a matter:

(a)    that provision shall be deemed to vest that court with jurisdiction in that matter;

(b)    the jurisdiction so vested is not limited by any limits to which any other jurisdiction of the court may be subject; and

(c)    in the case of a court of a Territory, that provision shall be construed as providing that the jurisdiction is vested so far only as the Constitution permits.

17    Section 476 of the Migration Act provides:

476    Jurisdiction of the Federal Circuit Court

(1)    Subject to this section, the Federal Circuit Court has the same original jurisdiction in relation to migration decisions as the High Court has under paragraph 75(v) of the Constitution.

(2)    The Federal Circuit Court has no jurisdiction in relation to the following decisions:

(a)    a primary decision;

(b)    a privative clause decision, or purported privative clause decision, of the Administrative Appeals Tribunal on review under section 500;

(c)    a privative clause decision, or purported privative clause decision, made personally by the Minister under section 501, 501A, 501B, 501BA, 501C or 501CA;

(d)    a privative clause decision or purported privative clause decision mentioned in subsection 474(7).

(3)    Nothing in this section affects any jurisdiction the Federal Circuit Court may have in relation to non-privative clause decisions under section 8 of the Administrative Decisions (Judicial Review) Act 1977 or section 44AA of the Administrative Appeals Tribunal Act 1975.

(4)    In this section:

primary decision means a privative clause decision or purported privative clause decision:

(a)    that is reviewable under Part 5 or 7 or section 500 (whether or not it has been reviewed); or

(b)    that would have been so reviewable if an application for such review had been made within a specified period; or

(c)    that has been, or may be, referred for review under Part 7AA (whether or not it has been reviewed).

18    By s 474(4) Item 14, for the purposes of s 474(2) a decision under s 273 is not a privative clause decision.

19    By s 474(6), a decision mentioned in s 474(4) is a non-privative clause decision.

20    Section 5(1) of the Migration Act defines “migration decision” as follows:

migration decision means:

(a)    a privative clause decision; or

(b)    a purported privative clause decision; or

(c)    a non-privative clause decision; or

(d)    an AAT Act migration decision.

21    Thus the Federal Circuit Court has the same original jurisdiction in relation to migration decisions which are non-privative clause decisions as the High Court has under s 75(v) of the Constitution.

22    By s 474(1), a privative clause decision:

(a)    is final and conclusive; and

(b)    must not be challenged, appealed against, reviewed, quashed or called in question in any court; and

(c)    is not subject to prohibition, mandamus, injunction, declaration or certiorari in any court on any account.

23    As we have said, a decision under s 273 is not a privative clause decision.

24    Section 273 provides:

273    Detention centres

(1)    The Minister may, on behalf of the Commonwealth, cause detention centres to be established and maintained.

(2)    The regulations may make provision in relation to the operation and regulation of detention centres.

(3)    Without limiting the generality of subsection (2), regulations under that subsection may deal with the following matters:

(a)    the conduct and supervision of detainees;

(b)    the powers of persons performing functions in connection with the supervision of detainees.

(4)    In this section:

detention centre means a centre for the detention of persons whose detention is authorised under this Act.

25    Section 8 of the Administrative Decisions (Judicial Review) Act provides:

8    Jurisdiction of Federal Court and Federal Circuit Court

(1)     …

(2)    The Federal Circuit Court has jurisdiction to hear and determine applications made to the Federal Circuit Court under this Act.

Note:    See also subsections 3(10), (11) and (12).

The reasons for judgment of the primary judge

26    The primary judge considered the question of jurisdiction at [24] and following. At [33]-[34], the primary judge relied on SZSZM v Minister for Immigration and Border Protection [2017] FCCA 819; 321 FLR 162 and on Minister for Immigration and Border Protection v ARJ17 [2017] FCAFC 125; 250 FCR 474 per Flick J at [67], that decisions made pursuant to s 252 remain reviewable by the Federal Circuit Court. SZSZM is the subject of an appeal to this Court which is presently reserved.

27    The primary judge said, at [36]-[37]:

The applicant asserts a breach of the duty of care owed to him by the Minister and his Department. While a claim in negligence has not been specifically pleaded, it is tolerably clear that such a claim is intended from the asserted breach of the duty of care. This Court has jurisdiction, which is co-extensive to that of the High Court under s.75(v) of the Constitution, to grant injunctions restraining the commission of a tort. Likewise, the Court has jurisdiction, derived from the Federal Circuit Court Act, to make declarations in relation to tortious activities. It follows, in my view, that the Court has jurisdiction to grant the injunctive relief sought on an interlocutory basis, pending the outcome of the proceedings.

Likewise, I find that the Court has jurisdiction to entertain the application under s.8 of the ADJR Act. The applicant has advanced arguable grounds of review available under s.5(1) of that Act. I find that the decision in issue was made “under an enactment”, namely s.273 of the Migration Act. In reaching that conclusion, I have considered the decision of the Federal Court in Clamback v Coombes [(1986) 13 FCR 55] which concerned instructions on the management of airports, but I have also had regard to the cautionary observations made by French J (as his Honour then was) in Century Metals and Mining NL v Yeomans [(1988) 16 ALD 406; (1988) 85

ALR 29].

28    The primary judge then went on to consider whether an interlocutory injunction should be granted.

29    At [89], the primary judge said:

The applicant complains about the validity, legality or legal reasonableness of that Directive. The gravamen of the complaint is that the Directive is invalid or unreasonable because:

a)    the sharing of his family’s food with him is an important cultural and familial event, and one that is beneficial to his own psychological and physical health, and that of his family members’; and

b)    the underlying reasoning behind the Directive (food safety) is allegedly inconsistently applied and illogical, in circumstances where his family’s food has never made him ill, and the Serco staff at Villawood are allegedly permitted to bring their home cooked meals into Villawood.

(Footnotes omitted.)

30    At [91], the primary judge accepted that the then applicant had advanced a serious question to be tried. The primary judge said:

… There is an underlying cause of action in tort as against the Commonwealth respondents and I accept that the applicant has suffered detriment as a consequence of the implementation of the decision. In particular, he has been deprived of a significant connection to his family through the joint consumption of home cooked food during visits. The applicant has been detained in a detention centre for around five years and legitimately contests a decision made by the Minister which would further institutionalise him, by placing a barrier in the way of his maintenance of a connection with ordinary family life.

31    The primary judge accepted, at [92], that there was at least the risk, if not the fact, that the continued implementation of the decision in respect of the then applicant would expose him to ongoing psychological harm which may be irreparable.

32    At [95], the primary judge said:

The gravamen of the applicant’s complaint is the validity or reasonableness of the Directive, over which Serco has no control. Serco is simply required to adhere to and enforce the Directive. It has no discretion not to implement the Directive, or to implement it in a different fashion.

(Footnote omitted.)

The parties’ submissions

33    The applicants for leave to appeal submitted, at [14], that the primary judge held that the Federal Circuit Court had jurisdiction to review the decision, being the Directive, because it was a decision to which the ADJR Act applied and that it had jurisdiction to determine an underlying action in negligence under s 476(1) of the Migration Act. The applicants submitted that the primary judge granted the interlocutory injunction on the basis of what he found to be a serious question to be tried in the negligence action, referring to [91] of the reasons of the primary judge.

34    The applicants submitted that the primary judge granted an interlocutory injunction on the sole basis that the “underlying cause of action in tort” gave rise to a serious issue to be tried, referring to [36] and [91] of the reasons of the primary judge.

35    The applicants submitted that breach of duty of care is not a recognised ground of judicial review. Further, even if it had been tolerably clear that an action in negligence was intended, it would not have been open to the primary judge to find that there was a serious question to be tried on the basis of the materials before him. The applicants submitted that psychological harm was not, without more, actionable in negligence and SZRWS did not allege, and his evidence did not support a finding, that he was suffering from a recognisable psychiatric illness caused by the Directive. On that basis alone, it ought to have been concluded that there was no prima facie case.

36    The applicants also submitted that the primary judge erred when he held that s 476(1) of the Migration Act conferred jurisdiction on the Federal Circuit Court to decide a negligence claim. The applicants submitted that the jurisdiction of the Federal Circuit Court was limited to applications for judicial review and did not give the Federal Circuit Court jurisdiction over actions in tort. The applicants referred to Fernando v Minister for Immigration and Citizenship [2007] FCA 1203; 165 FCR 471 at [22] where Siopis J said, with reference to Bodruddaza v Minister for Immigration and Multicultural and Indigenous Affairs [2007] HCA 14; 228 CLR 651 at [21]-[25]:

In my view, the observations of the High Court in relation to the legislative intention of the 2005 Act apply mutatis mutandis to the amendments made to the Act by the insertion of s 476A. Accordingly, the limitations imposed by that section on the original jurisdiction of the Federal Court were intended to apply only to the “challenge by the judicial review processes to migration decisions”. It follows that the original jurisdiction of the Federal Court under s 39B(1A)(c) of the Judiciary Act, to hear and determine a claim for common law damages for false imprisonment arising from detention under the Act, is not affected by s 476A. In other words, s 476A(1) of the Act is to be read as if the words “an application for judicial review of”, were inserted between the words “in relation to” and “a migration decision”.

37    As to substantial injustice, the applicants submitted that the grant of the interlocutory injunction had led to the differential treatment of detainees at Villawood, which in turn had led to a significant number of complaints: 171 of the detainees had made complaints including complaints about the unfairness involved in allowing one detainee to consume home-cooked food, while others cannot, and threats to institute a class action “in support of the existing injunction in the court”. Reference was made Mr O’Connor’s affidavit. It was submitted that other detainees were complaining about differential treatment and suspending the policy would have wider public policy implications.

38    SZRWS submitted that there was no substantial injustice that the applicants would suffer should leave to appeal be denied and no special considerations were offered by the applicants. With reference to Australian Securities Commission v Somerville (1994) 51 FCR 38 at 45, SZRWS submitted that whether the applicants would suffer a substantial injustice was particularly significant as the Court must exercise particular caution in reviewing an order granting an interlocutory injunction. The decision of the primary judge was interlocutory and it did not have the “practical operation of finally determining the rights of the parties.” That would only be the case if the primary judge had ordered that he did not have jurisdiction. Because the applicants did not press ground 4 of the draft notice of appeal and the applicants therefore accepted that the primary judge had jurisdiction to hear his claim under the ADJR Act, even if the applicants were successful in relation to grounds 1-3, SZRWS’s second ground of his further amended application would remain a live issue at the final hearing.

39    SZRWS submitted that the Federal Circuit Court had a matter before it in relation to jurisdiction conferred on it by s 8(2) of the ADJR Act (which jurisdiction was not disputed by the Commonwealth for present purposes). The application for an injunction to prevent a continuing tort was an associated matter within the meaning of s 18 of Federal Circuit Court of Australia Act 1999 (Cth), and the Federal Circuit Court therefore had jurisdiction to hear that associated matter, even if (which was denied) it would not otherwise have jurisdiction in relation to it. Having referred to Fencott v Muller [1983] HCA 12; 152 CLR 570 at 591 per Gibbs J, SZRWS submitted the Federal Circuit Court therefore has jurisdiction, on that basis too, in relation to the application for an injunction to prevent a continuation of the Commonwealth’s breach of its duty of care.

Consideration

40    Although not representing any hard and fast rule, considerations relevant to the exercise of the discretion conferred by s 24(1A) of the Federal Court of Australia Act 1976 (Cth) are whether in all the circumstances the judgment of the primary judge is attended by sufficient doubt to warrant it being reconsidered by the Full Court; and whether substantial injustice would result if leave were refused, supposing the decision to be wrong: see Tyne (Trustee) v UBS AG [2016] FCA 241; 338 ALR 624 at [32]-[33], per Edelman J citing Bienstein v Bienstein [2003] HCA 7; 195 ALR 225 at [29] (the Court); Samsung Electronics Co Ltd v Apple Inc [2011] FCAFC 156; 217 FCR 238 at [26] and [29] (the Court) and Johnson Tiles Ltd v Esso Australia Pty Ltd [2000] FCA 1572; 104 FCR 564 at [43]–[44].

41    Here there is no detailed or persuasive evidence of any substantial injustice to the applicants by the continuation of the injunction pending the final hearing before the Federal Circuit Court. The evidence amounts, at its highest, to little more than administrative inconvenience. That inconvenience arises from other detainees wishing to be treated in the same way as SZRWS and threatening to take legal proceedings if they are not so treated. Counsel for SZRWS took the Court to Brilliant Digital Entertainment Pty Ltd v Universal Music Australia Pty Ltd [2004] FCAFC 270; 63 IPR 373 per Black CJ and Stone J at [7]. Their Honours said it was neither necessary nor appropriate to attempt to define the concept of substantial injustice but made some observations. One of those observations was that the qualification of “injustice” by “substantial” pointed to a detriment that, while not necessarily irreparable, was more than mere inconvenience. We agree.

42    It is also significant to the exercise of the discretion to grant or refuse leave to appeal in this case that the grant of leave, and indeed a successful appeal if leave were granted, would not finally determine the proceedings in the Federal Circuit Court given that the applicants no longer press ground 4 of their proposed notice of appeal. The factual substratum of matters relevant to any action for breach of any duty of care and of relevance to the judicial review aspect of the matter before the Federal Circuit Court would appear in large part to overlap, such that the separate resolution of one issue would not remove the necessity for the Federal Circuit Court to hear and resolve the remainder.

43    It is desirable that all issues should be resolved in the one forum and at the same time, rather than this Court potentially resolving part of the claim, with the other part necessarily adjourned by the Federal Circuit Court to some future date. Legal proceedings should not be fragmented without good reason.

44    As to the proposed application to cross-appeal, it is to be withdrawn, with costs, and it is unnecessary to say anything more about it.

45    SZRWS sought leave to file a proposed notice of contention concerning s 18 of the Federal Circuit Court of Australia Act. That application was not opposed and we grant leave to file and rely on that proposed notice of contention. It is not necessary for us to consider its substance.

Conclusion and orders

46    Leave to appeal is refused, with costs.

Associate:    

Dated:    6 April 2018