FEDERAL COURT OF AUSTRALIA

Goldie v Commonwealth of Australia [2000] FCA 1873

IMMIGRATION – detention of non-citizen on basis of suspicion of officer that visa terminated – suspicion based on erroneous computer record – whether reasonable suspicion – whether detention unlawful – whether misfeasance in public office – negligence or breach of statutory duty – jurisdiction – decisions relating to grant of Bridging Visas – declaratory relief sought – proceedings commenced more than twenty eight days after notification of decisions – whether court lacked jurisdiction to entertain claims for relief – misfeasance in public office in relation to decisions concerning bridging visas – principles – Information Privacy Principles – whether breached – whether any jurisdiction to entertain claims of breaches of information privacy principles.

Migration Act 1958 (Cth) s 189, s 475, s 485, s 486

Privacy Act 1988 ss 14 and 16

Ayub v Minister for Immigration and Multicultural Affairs (2000) 99 FCR 269 cited

Hocine v Minister for Immigration and Multicultural Affairs (2000) 99 FCR 269 cited

Saunders v Snell (1998) 196 CLR 329 followed

BRIAN GERALD JAMES GOLDIE v THE COMMONWEALTH OF AUSTRALIA, THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS, JEFFREY TUNBRIDGE, ANTHONY BATTAGLINI, ROSS GREGG, MICHAEL CAIN, JAMIE McCORMACK, THOMAS HOENIG, DONNA RIORDAN

W53 of 2000

FRENCH J

22 DECEMBER 2000

PERTH

THE COURT ORDERS THAT:

1.         The application is dismissed.

2.         The Applicant is to pay the Respondents’ costs of the application.

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

REASONS FOR JUDGMENT

Introduction

1                     Brian Gerald James Goldie is a citizen of the United Kingdom who came to Australia in 1992.  He applied for a permanent resident visa in 1993 on the basis of his marriage to an Australian citizen.  That marriage broke down and his application was eventually refused in 1998.  He has been the subject of a warrant for his arrest in Scotland and is facing charges on three counts of stealing as a servant in Perth, Western Australia.  His immigration history in this country is long and torturous.  He has had a series of bridging visas of different kinds.  In February 1998 he was taken into immigration detention for three days as the result of an error in a departmental computer record which conveyed the impression that he had no current visa.  He sues the Commonwealth, the Minister and various departmental officers on a variety of grounds claiming damages for misfeasance in public office, false imprisonment, negligence, breach of statutory duties and contravention of Information Privacy Principles in the Privacy Act 1988.  He also claims a variety of declaratory orders in relation to bridging visas issued to him and prerogative relief. 

Factual Background – Application for Permanent Residency

2                     Brian Gerald James Goldie (Goldie) was born in Scotland on 3 October 1967.  On 7 February 1992 he was granted a Class 660 visitor visa in Edinburgh.  On 24 February he first arrived in Australia.  He departed on 20 July.  On 4 December 1992 he returned to Australia and was granted an entry permit permitting him to remain for six months.  Goldie had previously been married, but the marriage had ended in divorce in 1988.  There was one child of the marriage, Nicola.

3                     On 17 May 1993 Goldie made application for a Permanent Resident (Spouse (After Entry)) entry permit subclass 801.  His nominator on that application was an Australian citizen, Jill Maree Weiss, who he had married in Townsville on 27 March 1993.  On 16 June 1993 Goldie was granted a Processing (Residence) Entry Permit (PREP) pending a decision on his substantive application.  He appears to have delayed in complying with departmental requests for documents relating to the custody of his daughter Nicola and a statutory declaration acknowledging that approval of his application would not guarantee permanent entry for his daughter.  The bona fides of his marriage to Ms Weiss being accepted, Goldie was granted an extended eligibility temporary entry permit on 28 January 1994 allowing him to stay until 17 July 1995.   From 1 September 1994 his application was treated as an application for a Transitional (Permanent) Visa by operation of transitional regulations. 

Factual Background – Breakdown of Second Marriage 1994

4                     On 25 October 1994, Jill Weiss, told the Department of Immigration that the marriage was over.  She said they had been separated since 14 August 1994 and that their relationship would never resume.  She also said that Goldie was the subject of a domestic violence protection order which she had taken out.  Moreover he was under investigation for assault.  She did not wish to see him granted residence in Australia.  The protection order made against Goldie was made on 27 October 1994 under the Domestic Violence (Family Protection) Act 1989 (Qld).  Presumably Ms Weiss’ reference to having taken out such an order was a reference to her application and/or a temporary protection order.  The said order of 27 October was made in the Magistrates’ Court of Queensland at Townsville.  It recited the court’s satisfaction that Goldie had committed an act of domestic violence (as defined in the Act) towards his spouse.  The order was stated to be valid until 26 October 1996 unless sooner revoked or varied.  Goldie himself obtained a temporary protection order under the same legislation on 2 November 1994.  This appears to have been obtained ex parte and was stated to be in force until 30 November.  It embodied a summons with a return date for hearing of an application for a protection order. 

5                     On 20 November, Goldie wrote to the Department advising that he and his wife had resumed their normal relationship.  They had been under considerable financial pressure and university exam related stress which had caused a “temporary breakdown” in the relationship which “although fairly violent was fortunately short lived”.  He went on to say:

“My wife has now returned to live in our home and all legal actions etc have been dropped as they are no longer required. 

My wife and I now intend to take a short holiday in Scotland and perhaps you could advise us of the procedures we will require to conform to for our return to Australia.

I must apologise for any inconvenience that this episode has caused you and can assure you that there will be no further recurrences.”

However on 7 December 1994, Ms Weiss wrote to the Department saying that there had been no reconciliation with Goldie.  She wrote that they had “consistently been separated for some months” and that she did not intend to resume the relationship.  She also advised that she had contested his application for a protection order on 1 December 1994 and would appear in court on 13 December when the matter resumed in the event that he were to pursue it.   On 15 December 1994 Goldie wrote to the Department, referred to his earlier letter of 20 November and said:

“At that time I stated that my wife and I had effected a reconciliation and I would not be continuing with court action.  Unfortunately I contacted you in haste after assurances from my wife that she would be returning to reside in our matrimonial home, this event was unsuccessful and it was necessary for me to proceed with my action in the Domestic Violence Court.”

He claimed to have been granted a permanent protection order, initially contested by his wife, then granted in her absence on 13 December.  He was contacting the Department, he said, “…to ascertain the procedure for the granting of my permanent residence in Australia under the terms of the domestic violence provision which is included in the rules and regulations of your Department for EETEP holders”.  He observed that:

“…this provision clearly states that exemption from the two year continuing relationship period will be granted on the provision to your department of a protection order, this was provided to you on November 2^nd 1994, a copy of the permanent order can be made available to you on request.”

Having regard to the contents of Goldie’s letter of 15 December 1994, the letter of 20 November 1994 contained at least one obvious falsehood.

6                     The reference to the regulations in Goldie’s letter to the Department appears to be a reference to the criteria then set out in Schedule 2 of the Migration Regulations 1993 for the grant of a class 801 (Spouse) (After Entry) Entry Permit.  It was possible for an applicant for such a permit to meet its requirements notwithstanding that the marital relationship with a nominating spouse had ceased where:

“A court has made an order under a law of a State or Territory against the nominating spouse for the protection of the applicant from domestic violence.”

Migration Regulations 1993 Schedule 2 cl 801.732(6)(c)(ii)

This criterion and Goldie’s awareness of it together with the timing of his application for a protection order raise the possibility and, having regard to the general impression I have formed of him, the probability that the application was a tactic to offset the legal disadvantage he found himself at by reason of the termination of his relationship with Ms Weiss. 

Factual Background – Relationship with Christina Spence 1994-1996

7                     Goldie did not stay long alone.  As conceded in a letter which he sent to the Department much later, on 7 March 1997, he had already in August 1994 met a Ms Christina Spence with whom he began living in December 1994.  These facts emerged following an interview with Goldie on 26 February 1997 in which he said he had a current relationship with Ms Spence.  It was the departmental follow-up with Ms Spence which elicited the information that they had met in August 1994 and began living together in November or December of that year.  The Department wrote to Goldie on 28 February 1997 asking him to clarify the disconformity between what he had written on 20 November 1994 and Ms Spence’s advice about the commencement of their long term relationship.  In his letter of 7 March 1997 Goldie asserted that Ms Weiss and he had had a number of attempts at reconciliation up to and including 11 December 1996.  He claimed that the reconciliation advised on 20 November had lasted only a few days and that he had informed the Townsville office of the Department early in December that all prospects of reconciliation had ceased.  He said that the relationship with Ms Spence had grown in the period following his final break from Ms Weiss and that he and Ms Spence remained close emotional partners over two years.  The point he sought to make that there was no need for him to be concerned with misleading the Department about his relationship with Ms Weiss since, after being granted the first protection order, he discontinued his original dependent spouse application.

8                     Notwithstanding his explanation, the facts necessarily conceded by Goldie show his letter of 15 December 1994 as well as that of 20 November 1994 to have been misleading.  This is particularly so in light of the last paragraph in the latter letter in which he said:

“I still remain hopeful that my wife and I may be able to reconcile our differences and resume our relationship and I will advise you immediately should there be any change in circumstances.”

Factual Background – Application for Bridging Visas B - 1995

9                     In March 1995 the Department received advice from the Australian Federal Police that an arrest warrant had issued on 25 November 1994 out of the Edinburgh Sheriff’s Court against Goldie and two other men, Harrison and Cochrane, for what were described as “large scale fraud offences”.  This advice was not disclosed to Goldie at that time.

10                  On 6 June 1995, Goldie wrote referring to his still pending application stating that within four weeks his employers intended to send him to New Guinea to work.  This would necessitate steps being taken to facilitate re-entry to Australia on either a permanent or temporary basis.  He asked for advice on the appropriate course of action.  He also stated his belief that the visa he held currently had expired as a result of the restraining order taken against his ex-wife and he was unsure as to which type of application he should now make.  An internal minute of 15 June 1995 indicated that at that time he was seen as seeking residence on the basis of the temporary protection order which he had obtained in November 1994.  His application was being considered in that respect under subclause 801.731(6) of Schedule 2 of the Migration (1993) Regulations as they then were.  The Department at that time was concerned about whether the issue of the arrest warrants would affect the determination of the good conduct criteria for the grant of permanent residence.  There was also a question of informing Goldie of the outstanding charges as a matter of procedural fairness.

11                  In the event, on 31 July 1995 Goldie applied for a Bridging Visa B which was granted on 9 August 1995. Under this visa he was entitled to travel from and return to Australia. One of the factors supportive of the grant was the expected processing time for decision on his substantive visa application which would exceed the length of his proposed absence from Australia.  He departed Australia on 26 August 1995 and returned on 18 September.  He applied for a further Bridging Visa B on 20 September, again with permission to travel and that was granted on 20 September.  Another application was made for a bridging visa B on 22 November 1995 which was granted on 24 November 1995.  Under that visa which was valid for three months Goldie again departed Australia on 27 November and returned on 29 December.

Factual Background – Processing of Permanent Residence Application

12                  On 30 January 1996 Goldie wrote to the State Director of the Department in Brisbane in connection with his outstanding application for a permanent resident visa.  He complained of the lack of progress of the Cairns office in dealing with the application and accused the officer in charge of the case, Mr Battaglini, of being “evasive and unhelpful”.  He said:

“The delays have made it difficult for me to make any solid decisions about my future, even though I own my own home in Australia, work full time and have considerable ties here, including a de facto relationship which has been ongoing for some 12 months.”

He referred to his previous marriage which he said “terminated in 1994”.  He referred also to what he called the “dangerous and violent conduct” of his former wife and the necessity to take out a domestic violence order against her.  He claimed that since the original order it had been necessary to renew the order and that his ex-wife had been charged with criminal breaches of the domestic violence order due to her continuing violent and dangerous behaviour.

13                  On 1 March 1996, the Australian Federal Police informed the Cairns office of the Department that the Fraud Squad of the Edinburgh Police had advised that Crown Counsel would not be proceeding with extradition against Goldie but that the outstanding warrants would remain in force.  An Australian Federal Police Liaison Officer in London sent a fax dated 22 May 1996 enclosing attached documents for forwarding to the Federal Agent at Cairns who was liaising with the Department of Immigration in respect of Goldie’s application for permanent residence.  One of the documents attached was entitled “Warrant Enquiry”.  It outlined allegations against Goldie and two other men, Harrison and Cochrane, and concluded with the following paragraph:

“It is understood that these persons have obtained visas to visit Australia.  I do not have any information regarding the present whereabouts of Cochrane or Harrison.  I believe that Goldie was issued with a B2 visa on 07.02.92 and that in December 1992 he travelled to Australia where he married an Australian citizen and took up residence at 29 BERGIN ROAD CRANBROOK TOWNSVILLE 4814, NORTH QUEENSLAND, AUSTRALIA.  The Procurator Fiscal has indicated that the amount involved is insufficient to consider extradition in this case.”

14                  The next recorded step on the papers is an interview between Goldie and the Departmental officer, Jeffrey Tunbridge, who is named as third respondent in these proceedings.  The interview took place on 26 February 1997.  Tunbridge's typed record of the interview indicates that he disclosed to Goldie information concerning the outstanding warrants and some fifty seven fraud charges to which they related.  Goldie indicated that he had met Harrison and Cochrane some years previously.  It is not necessary for present purposes to set out the detail of the matters put to him and his responses in relation to the particular allegations.  However, when asked if he knew why an arrest warrant would have been issued against him he said he did not.  Tunbridge put to Goldie that he was not being frank.  Goldie said he was shocked and surprised by the allegations and said he had only done some work for Cochrane and Harrison.  He did not realise they were doing anything illegal.

15                  He was asked about his first marriage and he said he had “stupidly got the girl pregnant” and they were married when he was only seventeen years old.  They had separated by mutual consent.  He was referred to an allegation by Ms Weiss said to have been made in November 1994, in which she claimed he admitted to her that he might be the subject of charges in Scotland in relation to theft or defrauding of a bank.  Tunbridge pointed out to Goldie the close resemblance of the details of the allegations to those provided through official channels and asked for his comment.  He said he had nothing to add, but that he was in another relationship and his ex-wife was making things very difficult.

16                  He was referred to his application form and his answer “no” to the question “Have you ever been charged with a criminal or other offence pending trial or summary hearing?”  As to the warrant which had issued on 25 November 1994 he said he was not even in Scotland, but in either Singapore or Australia.  Tunbridge told him he thought his answer was evasive because the warrant related to events which had taken place in 1992 and not 1994 and told him so.  His note was that Goldie did not respond. 

17                  They then discussed Goldie’s current relationship with Christina Spence.  In relation to Ms Weiss, Tunbridge’s record indicated that Goldie told him he had put her out of his life and that her family had made certain threats against him and he was in fear of them.  Tunbridge described him as “…vague and discursive when … asked for details of these threats”.  Asked whether he would consider returning to Scotland to personally clear things up, he apparently told Tunbridge he could not afford to do so.  Asked whether he would go if his fares were to be paid, he said it would be very difficult because he was tied up in Australia at the moment. 

18                  Tunbridge sought further information from the Australian Federal Police about a civil action over Goldie’s alleged involvement in the fraudulent sale of two Ford motor vehicles and in relation to the warrants. Information was obtained from the Lothian and Borders Police in Edinburgh, through the Australian High Commission in London on 10 April 1997.  According to that information the fraud alleged against Goldie, Harrison and Cochrane involved the opening of eighteen personal bank accounts by them and the drawing of cheques from business accounts paid into those accounts and large withdrawals made prior to the cheques being cleared.  The letter asserted that there was no doubt that all three accused were involved in an alleged fraudulent scheme and that there was sufficient evidence against Goldie to allow Crown authorities in Scotland to issue an arrest warrant in respect of him.  Tunbridge also followed up with Ms Spence as earlier noted and elicited the information about the commencement of her relationship with Goldie in 1994.

Factual Background – Refusal of Application for Permanent Residence – 20 May 1997

19                  In the event, on 20 May 1997 Tunbridge, as a delegate of the Minister, decided to refuse Goldie’s application for permanent residence in Australia.  In his record of decision he accepted the advice from Lothian and Borders Police that Goldie was the person involved in the frauds alleged and rejected his claims that he was not involved.  Having regard to what he described as “…this past criminal conduct” he was satisfied that Goldie was not of good character.  Turning to the question whether this would justify refusal of a visa under s 501 of the Migration Act 1958 (Cth) he observed that it was evident that the proposal to extradite Goldie and two others back to Scotland failed because the Procurator Fiscal indicated the amount involved in the fraud was insufficient to consider extradition.  He accepted that this might lead to a conclusion that the criminal behaviour was not considered by the UK authorities to be a serious matter.  There was also, however, advice that should they return to the United Kingdom, the warrants would be executed.  He said:

“Therefore it seems clear that the decision not to proceed with the attempt to extradite Mr Goldie was made for commercial reasons rather than because it was not considered a serious matter.”

He observed the advice from the police that there was no doubt that all three accused were involved in an organised fraudulent scheme as lending weight to the seriousness of the criminal behaviour.  He again referred to Goldie’s responses to questions about whether he would return to Scotland.  He referred in particular to a comment Goldie made in interview that he had obtained a clear police record when he applied for his visa to go to Papua New Guinea.  It had subsequently been established that the clear police certificate submitted when he applied for his PNG visa had been obtained from the Queensland police and related only to Queensland.  Tunbridge concluded that Goldie’s mention of this in the context of the interview with him was an attempt to mislead the Department into believing his record in the UK was clear.  He went on to say:

“Further the offences for which the fraud charges were brought occurred on 24 and 26 November 1992 (folio 198) and Mr Goldie arrived in Australia a short time later on 4 December 1992 (folio 52).  After Ms Weiss took out her domestic violence order against him on 27 October 1994, Mr Goldie took out a counter domestic violence order against her on 30 November 1994 before notifying the Department on 15 December 1994 that he wished to continue with his application for permanent residence under the domestic violence provisions (folio 97).”

Tunbridge found that Goldie’s dealings with the Department since arriving in Australia had been evasive and misleading and were consistent with a clear desire to avoid returning to the UK even on a temporary basis to clear up the misunderstandings which he claimed existed about his role in the frauds.  He concluded from this that there was an underlying seriousness to the charges of which Goldie was aware. 

Notification of the Refusal of Permanent Residence – 29 May 1997

20                  On 29 May 1997, Goldie was sent a letter from Mr Battaglini at the Cairns office of the Department advising him of the decision to refuse the application.  The letter included the following passage:

“I shall now explain your current migration status and the options available to you now that your application has been refused.

Your Current Immigration Status:

After you lodged your application to remain in Australia you were granted a bridging visa to ensure you had lawful status throughout the processing of your application.  This bridging visa will remain in effect for 35 calendar days from the date of this letter, that is, 3 July 1997.”

He was then advised of his entitlement to seek a review of the decision through the Administrative Appeals Tribunal.  The letter then went on:

“If you lodge a valid application for review of the decision, the bridging visa you currently hold will remain in effect while your review application is under consideration.”

 On 3 July 1997 Goldie applied to the Administrative Appeals Tribunal for review of the  decision refusing his application.

Factual Background – Christina Spence’s Letter and Statement 14 July 1997-

30 October 1997

21                  On 14 July Ms Spence wrote to Tunbridge advising that her relationship with Goldie had broken down irretrievably in May 1997.  She wrote:

“One of the reasons for the dissolution of the relationship was Brian’s admission to myself and others of his guilt in relation to accusations of company fraud which he had allegedly committed in Scotland prior to his arrival in Australia in 1992.”

She said that, prior to her telephone conversation with Tunbridge earlier in the year, she had had no knowledge of Goldie’s involvement or that of Cochrane in the alleged offences.  She had not informed Tunbridge of the issues prior to the date of her letter because she was fearful of reprisal from Goldie whom she referred to as having a “violent and vindictive temperament”.  Because she believed from other sources that he was soon to leave Mackay she felt secure enough to inform Tunbridge of the facts relevant to his investigations.  She indicated that she was prepared to provide further information to Tunbridge should that be necessary.

22                  Ross Gregg, who is the fifth respondent, is an Executive Level 1 officer in the Litigation and Legal Services Branch of the Department of Immigration and Multicultural Affairs.  On 16 July 1997 he received a facsimile from the Cairns office of the Department attaching a copy of Ms Spence’s letter of 14 July. He made telephone contact with Ms Spence on 11 August 1997.  They discussed her letter of 14 July and he asked her to appear as a witness at the Tribunal hearing.  She agreed to do so.  She prepared a statement of evidence which she faxed to Gregg on 26 August 1997. He had a further telephone conversation with her during which they discussed the statement she had submitted.  In the course of that conversation he asked her to clarify some matters of detail.  He wanted to obtain her testimony on whether there was any reconciliation between Goldie and his former spouse, Ms Weiss after October 1994.  Ms Spence told him that Goldie had not made any attempt to reconcile with Ms Weiss following that incident. They agreed that he would prepare an amended statement for her signature.

23                  Subsequently, Gregg prepared a witness statement for Ms Spence to sign.  He forwarded it electronically to Tunbridge at Cairns.  Ms Spence attended the Cairns office, read the statement, and signed it on 3 September 1997.  The signed statement was then sent back to Gregg.  Gregg was cross-examined to suggest that he had added material which was not in Ms Spence’s original statement nor agreed to by her and that he had deleted other information which had been contained in the original statement.  I am satisfied however that he simply sought to put the proposed witness statement into a form appropriate for the AAT proceedings.

24                  Goldie received a message from his counsel on 29 October 1997 that Ms Spence was trying to contact him.  He said he was warned that he had to be very careful speaking to a witness and was advised to record the conversation.  He said he called her.  He claimed that she told him that there was material in her statement which she had not said.  He claimed she referred in particular to par 5 of the statement which was in the following terms:

“To the best of my knowledge and recollection Brian Goldie made no attempt to reconcile with Jill Weiss following the violent incident on 8 October 1994.  I am aware that Brian Goldie wrote to the Department in November 1994 claiming that he had resumed living with Jill Weiss at the Black River property.  That claim was false.  I was by that time living with Brian Goldie on a full-time basis at the property.  Brian Goldie stated to me that he wrote that letter to the Department because he was concerned that Jill Weiss would contest his application for a permanent protection order and that it may not be granted.  He stated that he was concerned that the temporary protection order may not be sufficient for permanent residence to be granted.”

According to Goldie’s affidavit,  Ms Spence also told him that she was pressurised when it came to signing the statement, that she was rushed, did not read it properly and that DIMA officers were distracting her by talking to her while she was reading it. 

25                  Ms Spence was called as a witness to the Administrative Appeals Tribunal hearing on 30 October.  At the outset she stated that she had reconsidered and would like to withdraw her statement from evidence.  As she had not been summonsed to the Tribunal the Deputy President took the view that she could not be compelled to answer any question put to her.  She did not maintain her contention that Goldie had admitted to her the truth of allegations of his involvement in a fraudulent scheme in Scotland.  She said she could not be certain that what she had been told by him was actually truthful.  She expressed the opinion that “perhaps the truth may have been embellished to me…”.  Asked whether Goldie had placed any pressure on her not to give evidence at the hearing, she said he hadn’t.  However he had “inadvertently” given her information that made her doubt that she knew the whole truth.  She said:

“At the time I believed that I was hearing an admission of guilt and now I am not certain whether he was actually guilty or not.”

Asked whether she had been rushed into signing the statement, she said she wouldn’t have said she was rushed.  She was in a hurry on the day she signed it as she was leaving Australia and had a lot of things to do and it was two days before she left.  She agreed that she was asked to read the statement and did read the statement in Cairns prior to signing it.  In cross-examination by Goldie’s counsel she said:

“The statement was accurate.  It is still accurate.  I am not satisfied that what I was told was accurate.”

26                  It is not in dispute that in the meantime, in August 1997, Goldie obtained employment with Fluor Daniel Pty Ltd as its finance manager for the Murrin Murrin nickel project in the Goldfields area of Western Australia.  Indeed, Mr Grant, a contract engineer employed by Fluor, gave evidence in support of Goldie and his character.

Factual Background – The Administrative Appeals Tribunal Decision Affirming Refusal of the Permanent Residence Visa – 18 February 1998

27                  On 18 February 1998 the Tribunal affirmed the decision to refuse the grant of a permanent visa.  The Tribunal concluded that Goldie was not of good character and referred to what it described as “[t]he lack of honesty and integrity which he has displayed in his dealings with the Department and his lack of integrity (in the sense of wholeness, soundness and uprightness) in not confronting the allegations of fraud in Scotland…”.  These were not outweighed by the good reports he had received from some of his past employers or the personal commendation of him by one of his witnesses, Mr Grant.

28                  It is conceded by the respondents that the Bridging Visa B referred to in the letter of 29 May 1997 remained in effect for twenty eight days after notification of the decision of the review tribunal.  That is to say the Bridging Visa B which continued by virtue of Goldie’s application to the Administrative Appeals Tribunal would continue in effect until 18 March 1998 unless otherwise terminated – cl 020.511(b) of Schedule 2 of the Migration Regulations 1994.

Factual Background – Detention of Goldie – 24 February 1998

29                  Michael Cain who is the sixth respondent in these proceedings is a Senior Immigration Inspector employed by the Department of Immigration and Multicultural Affairs, a position which he took up in December 1999.  Prior to that he was the officer in charge of the Compliance Section of the Perth office of the Department.  On 24 February 1994 he received a minute dated 20 February 1998 from Gregg attaching a copy of the decision of the Administrative Appeals Tribunal in relation to Goldie.  A copy of the departmental file was also attached.  The minute advised that Goldie was currently working for Fluor Daniel Pty Ltd.  Gregg also expressed a concern that Goldie might seek to go underground rather than face removal and that Cain might wish to consider whether the risk that he would not leave voluntarily or be available for removal would justify cancellation of his bridging visa.  On the same day Gregg was phoned by Brian Kinsella, the Finance Manager for Fluor Daniel in Melbourne.  His file note records that Kinsella told him they had been “tipped off” that Goldie might be illegally in Australia and wanted for fraud in the United Kingdom.  Gregg’s file note indicates that he advised Kinsella of the outcome of the AAT hearing and the implications of that for Goldie.  His note went on to say:

“I confirmed that Mr Goldie is lawful for the time being and had permission to work.”

His note records that Kinsella later phoned back with his in-house legal counsel to seek more information.  They were considering dismissing Goldie on the spot.  Gregg said that was a decision for them but that the Department in Perth would be interested in knowing what they planned to do.  He advised that he would ask Cain to phone Kinsella.  He also undertook to provide a copy of the AAT decision which was forwarded to Kinsella by letter on the same day.

30                  It was Cain’s evidence on affidavit that he was unable to process cancellation of Goldie’s bridging visa as he was not able to locate any record of it on the Department’s computer system.  The records showed that the last visa issued to Goldie was granted on 24 November 1995 and had ceased on 27 February 1996.  As a result of this search he formed the view that Goldie did not hold a valid visa and that he was therefore an unlawful non-citizen and that he, Cain, was required to detain him pursuant to s 189(1) of the Migration Act.  This, as has been conceded, was a mistaken view.

31                  Cain phoned Kinsella and after explaining the Department’s normal policy advised him there was reason to believe that Goldie might attempt to flee and that he was considering whether to cancel his visa and take him into detention.  Kinsella indicated they were about to dismiss Goldie.  He phoned Cain back a short time later to confirm that Fluor Daniel was going to do that as soon as possible.  He gave Cain the telephone number of Fluor Daniel’s Perth manager, Charles Hohnen.  Kinsella confirmed Goldie was going to be dismissed that day and would be escorted by Chubb Security to the ground floor of the building at 1 Mill Street.   Cain then spoke to Hohnen at Fluor Daniel’s Perth office.  Hohnen said he wanted the Department to be present at their dismissal of Goldie. The company felt that Goldie could flee Perth upon his dismissal.  Cain told Hohnen that the Department was not interested in their actions but was only concerned with Goldie’s unlawful status.  He told Hohnen the Department would be at Fluor Daniel’s office as it also had concerns that Goldie would disappear.

32                  It was Cain’s evidence that he arranged for another Departmental officer and himself to attend at Fluor Daniel’s office at 1 Mill Street, Perth at between 3.30pm and 3.45pm on 24 February.  They were asked to wait for Goldie in the foyer.  About five minutes later Goldie was escorted down to Cain who identified himself and explained that he was satisfied that Goldie was an unlawful non-citizen because his last visa had ceased on 27 February 1996.  Goldie said he was surprised by this.  He claimed his visa was valid for twenty eight days and that he had a letter from the Cairns office of the Department advising him that he had a bridging visa.  He wanted to telephone his lawyer.  Cain said he attempted to explain to Goldie that he was being taken to the Immigration Detention Centre at Perth Airport and that he could call his lawyer from there.  Two officers of Australasian Correctional Management (ACM) which operates the Perth Airport Immigration Detention Centre for the Department then escorted Goldie to the van in which he was taken to the Immigration Detention Centre at Perth Airport.  These officers were Phillip John Guilfoyle and Paul Robert Reeves. 

33                  Goldie’s evidence was that he was taken from his desk by two security guards and two men employed by Fluor Daniel, and against his will, to the foyer of the building.  When he got to the foyer he was approached by Cain and the other DIMA officer.  Cain had a document and told him that he was being detained and that his visa had been cancelled as a result of the adverse AAT decision.  He said he challenged Cain telling him that his lawyer had told him he had until 18 March to appeal and had a valid bridging visa issued in Cairns.  When Cain told him that his previous visa had ceased in February 1996 he challenged him again because Cain had just contradicted himself.  Cain however denies that he made any such statement and I accept his evidence.  It is inherently improbable that he would make a statement so much at odds with what he believed to be the case.

34                  According to Goldie the two ACM men stepped forward.  One of them took his phone from him, the other took his case.  He then said he was “…held by both arms and half walked and half dragged to a waiting van”.  He said he demanded to speak to his lawyer but the request was refused.  Cain denied that Goldie was roughly treated by the ACM officers or “half walked and half dragged” as he asserted.  Guilfoyle who recalled the incident said that he introduced himself to Goldie and told him that they had to take him to the Detention Centre.  He said they had handcuffs if necessary but he did not like using them.  There was a vehicle outside.  He suggested they just go there without any fuss and without attracting any attention or embarrassment.  He told Goldie if he resisted he would be restrained and handcuffed.  Reeves asked Goldie to hand over his briefcase and mobile telephone which he did reluctantly.  Guilfoyle and Reeves then escorted Goldie to the ACM van.  When they were escorting him to the van, according to Guilfoyle, he walked in the position slightly behind and to Goldie’s left with his right hand through his belt.  He said something to Goldie like “sorry mate, regulations” when he did this.  This was the only physical contact he had with Goldie.  Goldie was not pushed, pulled or dragged at any stage.  Reeves opened the side sliding door at the rear of the van and ushered Goldie into its secured area.  Guilfoyle followed Goldie into the rear of the van and Reeves drove it to the Detention Centre.  The DIMA officers did not accompany them. 

35                  Guilfoyle said he believed Goldie was “pat” searched by the ACM supervisor on duty at the time upon his arrival at the Detention Centre.  Although he had no clear recollection of it, that was the normal practice.  They then escorted Goldie to a holding room where he remained for five to ten minutes while the paperwork required for his induction was prepared.  He was taken to a property room where he was asked to sit and answer a series of questions regarding his personal details.  According to Guilfoyle he asked Goldie whether he had any tattoos or other distinguishing marks.  The operations file mentioned two tattoos, one on each shoulder.  Goldie told him of the tattoos in answer to his questions.  He said Goldie might have shown him the tattoos but he didn’t actually recall seeing them.  He said the description was sufficient and the shadow of the tattoos could be seen through the shirt.  He asked Goldie to remove all articles in his pockets and any jewellery he was wearing.  He was asked to remove his tie and shoelaces.  Guilfoyle denied Goldie was asked at any time to remove all or any of his clothing.  He carried out a further pat search, patting Goldie down over his clothing.  The processing in the property room including the pat search would have taken about forty five minutes.  The last step was to photograph Goldie twice, once with a polaroid passport camera for the file, and again with a digital camera to create an identification card for him to wear during visits and musters.  Goldie was informed of the Detention Centre’s requirements in relation to acceptable behaviour, personal hygiene and what was accessible to him.  He was told he was permitted to make telephone calls as he wished, then he was taken into the secure area.  He was not allowed access to his mobile telephone.  He used the telephone in the property room after the induction process was completed and called his partner, Valerie. 

36                  Guilfoyle had nothing more to do with Goldie thereafter.  He went on leave on 25 February.  By the time he returned to work, Goldie had been released.  He said that at no time was Goldie mistreated in any way in his presence nor did he make any complaints about his treatment.

37                  Reeves had no personal recollection of Goldie.  He spoke of the standard procedure for processing new detainees at the Detention Centre.  His account was generally consistent with that given by Guilfoyle. 

38                  Goldie said that upon his arrival at the Detention Centre he was told that he was to be searched and refused.  He said he refused twice.  One of the ACM men then laughed and pushed him against the wall and patted him down and took a photograph of him.  He was told to strip and again refused.  After his clothes were removed, details of tattoos, body marks and scars were noted in a file.  He said the ACM men were very rough and searched him while he was stripped, forcing him against the wall in the process.  He was told if he did not co-operate he would be transferred to a maximum security gaol.  The contents of his case were tipped on the table, his wallet was opened and everything was catalogued and put into plastic bags.  He said he was told to take a shower and shown into a dormitory, which he described as filthy.  His partner came to see him that night and she was distraught.  The visiting room was filthy,  the whole place covered in graffiti and all the furniture was torn and broken.

39                  I do not regard Goldie as a witness whose testimony in contentious areas can be relied upon unless inherently probable or corroborated by some independent evidence.  In particular and having regard to the testimony of Guilfoyle and Reeves, I am not satisfied that he was treated other than in the way described by the ACM officers in their evidence.

40                  After Goldie had been taken to the ACM van on the 24^th, Cain made inquiries about the letter to him from the Department’s Cairns office dated 29 May 1997 to which Goldie had referred.  Early the following day, 25 February 1998, Cain telephoned the Department’s Visa Cancellation Section and inquired about the computer system record in relation to Goldie.  It was confirmed to him that Goldie’s last visa had ceased on 27 February 1996, no subsequent visa had been granted and he had been an unlawful non-citizen since that date.  He further checked with Ms Eva Starczewska who had previously been a visa cancellation contact officer in Canberra.  She confirmed that Goldie did not hold a current bridging visa, the last having ceased on 27 February 1996.  A contemporaneous file note by Cain includes the statement that:

“Eva confirms must have been an error in the system.  No Bridging Visa is currently held by Mr Goldie…She can’t explain letter from Cairns office about BV it was not correct.”

Later that day Cain visited Goldie at the Immigration Detention Centre and interviewed him.  He reasserted to Goldie that he was an unlawful non-citizen.  In the course of the interview, Goldie asked him to call his lawyer while they were there, which he did.  The phone was on speaker.  Cain explained to Goldie that as a person in immigration detention he could apply for a Bridging E visa.  Goldie said he wished to apply for such a visa and he was provided with the relevant application form which he completed.

41                  On the same day, Goldie’s lawyer told Cain that he was about to file an appeal against the AAT decision in the Federal Court in Brisbane.  Cain telephoned Gregg and told him of Goldie’s application for a Bridging E Visa and the pending Federal Court appeal. I am satisfied that at all material times Cain believed Goldie to be an unlawful non-citizen.  There was no other reason for him to act as he did in arranging for Goldie to be taken into detention.  The basis of that belief was flawed resting upon his faith in the Department’s computer records which was misplaced.  He was, of course, put upon inquiry on 24 February about the letter of 29 May 1997 from the Cairns office.  He spoke to a number of staff in relation to it. 

Factual Background – The Medical Examinations – 25 and 26 February 1998

42                  Goldie says that on or about the 25^th February he was told he was required to have a medical examination.  He said he refused but was told he had no choice.  He said he was taken into a room with a male nurse and asked to take his clothes off.  He said the nurse examined his entire body while he was naked including an anal and genital examination.  He also asserted that the following day he was required to have a further medical examination but refused again and was again told he had no choice.  He was taken into a room with a male nurse and a female doctor and asked to take his clothes off.  The female doctor then examined his entire body, again including the anal and genital region. 

43                  Evidence was given by a nurse practitioner, Christopher John Hinton Colyer employed by ACM.  He had inspected the relevant ACM records relating to the reception and discharge of Goldie.  This included the file ACM had maintained in relation to his medical details and health.  He said ACM’s standard procedure was for all people detained at the Centre to be examined by the nurse practitioner within twenty four hours of their arrival and by a doctor within seven days of their arrival.  The file indicated that he had seen Goldie for initial examination on 25 February and that there were no unusual problems.  He always followed the same procedure in initial examination of a newly arrived detainee.  That procedure had not changed in any significant way since his initial examination of Goldie in February 1998.  He had some recollection of Goldie but his testimony was reliant upon his usual and standard procedures.  These included a measurement of height, taking blood pressure, provision of a urine sample and asking the subject to perform a number of movements to determine range of movement and flexibility.  There would then have been a standard examination on an examination couch.  There was reference on the file to a laparoscopy scar on the abdomen.  There was also reference to a stab injury in the groin.  In accordance with his usual procedures he would not have asked Goldie if he could see the area where he had been stabbed unless he still had medical problems as a result of it.  There was no record of any such problem in the medical file.  He says he certainly would not have inspected the area where he had been stabbed without Goldie’s express permission.  He recalled sufficient of the examination to remember that Goldie was very talkative, quite angry, embarrassed about the detention and felt that he had been hard done by and set up by someone in Queensland.

44                  The doctor’s examination was conducted by a Dr Suzie Poon. Colyer had no personal recollection of that examination.  But neither he nor Dr Poon would ask a detainee to disrobe unless examinations indicated an unusual problem which could only be properly investigated by having that happen.  A detainee who indicated that he or she did not wish to disrobe, would never be compelled to do so.  If there was an indication of any discomfort with any part of the initial examination or the further examination, then neither the doctor nor Colyer would proceed with that part of the examination. 

45                  Having due regard to Goldie’s cross examination of Colyer, I accept that there was no particular reason for departing from the standard procedures to which he deposed even though some parts of the medical examination form were not completed.  I am not persuaded that the events described by Goldie occurred as he described them.

Factual Background – Grant of Bridging Visa E – Release from Detention 27 February 1998

46                  On 27 February 1998, Jamie McCormack, the seventh respondent in these proceedings, decided to grant Goldie’s request for a Bridging Visa class E.  He advised him that he would be released from detention upon complying with certain conditions:

1.         he would not be permitted to work;

2.         he could live at any address specified by him;

3.         he must notify DIMA of any intended change of address;

4.         he must pay the costs of his detention.

He was also required to lodge a security in the sum of $10,000 before the visa could be issued.  The requisite security was lodged with DIMA that day  Valerie Finnis, Goldie’s partner.  He was released from immigration detention that day. 

47                  Goldie’s troubles however were intensifying at this time.  On 10 March 1998 Fluor Daniel issued proceedings in the Supreme Court of Western Australia alleging wrongful conversion of company cheques amounting to $417,515.30 in total, which cheques were said to have been fraudulently drawn on the company’s account between 1 October 1997 and 28 February 1998.  Fluor Daniel had alerted McCormack about its concerns on 5 and 6 March and also contacted the police.

48                  In complying with the conditions of his Bridging Visa E, Goldie had given as his address 18 Morriet Street Attadale.  On 13 March he telephoned the Department to advise that he was in court.  His partner, Valerie Finnis, rang on the same day and informed the Department that he was in the Federal Court in Brisbane and would return to Perth the following Monday.  On 18 March Cain received a call from Goldie’s lawyer, Lorenzo Bocabella, who told him that Goldie would remain in Brisbane and would inform the Department of his new permanent address.  Goldie had not told Cain at any time before his departure that he was going to Brisbane.  On 26 March 1998 DIMA received an advice from the West Australian police that Goldie had left his vehicle at Port Hedland for approximately two weeks previously and that there had been no contact with him since then.

Factual Background – Notice of Intention to Cancel Bridging Visa E 31 March 1998

49                  On 31 March 1998, Cain sent to Bocabella a notice of intention to cancel Goldie’s Bridging Visa E.  Bocabella wrote to McCormack on the same day stating that he could not accept the service of documents for Goldie.  He said Goldie’s address was still 18 Morriet Street, Attadale.  He was temporarily staying with the parents of his partner, Valerie Finnis.  He was of the view that Goldie was not in breach of his visa conditions.  Bocabella telephoned McCormack on 1 April and told him that Valerie Finnis’ parents were at Hervey Bay in Queensland.  The precise address was specified in a letter from Bocabella of 2 April.

50                  On 3 April, McCormack wrote to Goldie at the Hervey Bay address attaching correspondence which had been sent to Bocabella.  He drew Goldie’s attention to the fact that DIMA was requiring him urgently to complete and return another Bridging Visa application form.  This would allow variation of the conditions of the original agreed visa.  He was asked to nominate, as required, a current residential address and the date from which that would take effect.  He was asked to return the completed application form by 16 April 1998.  The letter concluded:

“Your urgent attention to this matter is critical, as my agreement to withhold further action on cancelling your bridging visa is conditional on you completing the new form and advising DIMA of your new address.”

There was no answer by 16 April and McCormack rang Goldie’s home phone number.  He then rang Bocabella and asked what had happened to the completed bridging visa application form.  Bocabella said he was working on the understanding that conditions had not varied, that Goldie was domiciled at the Hervey Bay address and that a completed form was not required.  McCormack said the DIMA position was clearly laid out in his letters to Goldie and that it was unacceptable that yet again Goldie had failed to respond with a confirmed place of residence.  He advised Bocabella to contact his client as soon as possible and respond on the same day with an answer to the questions.  Bocabella rang back later and advised that he had a completed Bridging Visa E application from Goldie which he would forward immediately.  He also said Goldie intended to reside permanently at the Hervey Bay address.  He asked if the file and the issue of a new Bridging Visa E could be decided by DIMA in Queensland.  McCormack was agreeable to this.  Bocabella followed up with a faxed letter enclosing the application.  On the following day McCormack transferred the file to the Brisbane regional office.

51                  On 29 April 1998, Mr Tom Hoenig, the officer in charge of the Compliance and Investigations Section at DIMA in Queensland, and who is named as eighth respondent in these proceedings, rang Goldie.  He identified himself as an officer of DIMA and expressed concern to Goldie that he had moved to Queensland in apparent breach of the conditions of the then current Bridging Visa E.  Goldie claimed Bocabella knew where he was.  However, Hoenig explained that this was not relevant as Goldie himself was responsible under the terms of the conditions attaching to his release from custody and might therefore be considered in breach of those conditions.  He asked that he come to the Brisbane office as soon as possible to lodge a fresh application for a Bridging Visa E so that the address and conditions might be varied.  Hoenig’s note is that Goldie was less than co-operative claiming that he was unemployed and could not afford to come to Brisbane for some weeks.  Hoenig advised him not to move from his address without first seeking DIMA approval no less than forty eight hours prior to his intended move and that in view of his response it would be necessary to consider cancellation of his visa.  Goldie said he would consult his lawyer.

Factual Background – Grant of Bridging Visa E – 20 May 1998

52                  Subsequently, on 8 May Goldie lodged a further application for a Bridging Visa E.  It is not clear what happened to the application which had been sent by fax to McCormack on 16 April.  On 20 May 1998 Hoenig advised him that his application had been approved with effect from that date.  The letter noted a claim by Goldie that he had lost his passport and advised that one of the conditions attaching to the grant of the visa was that he provide evidence of making application to the British High Commission for a replacement passport or produce the passport if it had already been issued.  The letter also attached an acknowledgment of receipt of the notice and understanding of the conditions set out in the notice which McCormack asked Goldie to sign, date and return within seven days.  That attachment itemised the conditions of the grant.  Goldie never signed and returned that document.   However, contrary to his submissions I am satisfied, as indicated in argument, that this has no effect in law upon the validity of the visa.  The acknowledgment of the receipt of the notice and understanding of conditions is an administrative measure only and not one of statutory significance. 

Factual Background – Federal Court Claim for Damages and Attempted Variation of Visa Conditions – 1 June 1998

53                  On 1 June 1998, Goldie commenced proceedings in the Federal Court in an action number QG51 of 1998 against the Commonwealth, the Minister and Cain for damages for false imprisonment and unlawful detention, misfeasance in public office and negligence.  There was a claim for interlocutory relief by way of an order directing the Minister to remove the condition on any bridging visa he currently held that he not be permitted to work and that the security moneys be returned to Valerie Finnis.

54                  On 2 June 1998, Hoenig received a hand delivered application from Goldie to change a condition of his Bridging Visa class E so that he would be able to work.  Bocabella contacted Hoenig on 5 June 1998 asking when he might make a decision on the application.  Hoenig then indicated that, as Goldie had sought interlocutory relief in the Federal Court including a variation of the work condition, it appeared to him that it would be appropriate to await advice of the Court’s decision.  In a file note of 15 June Hoenig observed that on the basis of the information lodged he was, in any event, still unconvinced that the granting of another Bridging Visa class E with work rights was warranted.  He noted comments from Gregg that Goldie was in fact the holder of a Bridging Visa B during the period when he was in detention and that it might now be unwise to deny him permission to work.

55                  In the meantime on 13 June, Gregg had been provided with an emailed history of Goldie’s visa applications by a departmental officer.  The error which gave the appearance that his last visa prior to his detention had expired in February 1996 was thought  to have derived from the fact that when he last entered Australia his passport number was entered into the system with a different last digit.  So when the entry expiry date of his Bridging Visa B came around, the system would have checked for his re-arrival using the same passport number and not finding it would have shown the bridging visa as ceased.

Factual Background – Grant of a Further Bridging Visa E – 19 June 1998

56                  On 19 June 1998 Goldie was granted a further Bridging Visa E.  That bridging visa continued the conditions of its predecessor.  From the first week of July however, Hervey Bay police advised Hoenig that Goldie had ceased reporting and that he was no longer resident at the Hervey Bay address designated in his Bridging Visa E and that his whereabouts were unknown to them.  On 31 July 1998, Cooper J dismissed Goldie’s application for interlocutory relief in the Federal Court proceedings which he had taken out in Brisbane.  On 18 August 1998 Hoenig wrote to Bocabella drawing his attention to Goldie’s failure to report and his breach of his Bridging Visa E.  He asked Bocabella to advise as soon as possible of his client’s present address.  On 20 August 1998 DIMA sent a notice to the West Australian Police that Goldie was wanted as a person no longer abiding by the conditions of his visa.  A request was made that he be placed on a State-wide alert.  Indeed it seems a nation-wide alert was established.  Goldie argued in his affidavit that the “confidential alert notice” was passed to Jeff Telfer of Fluor Daniel by Cain as appears from a note on the copy of the alert notice in the respondent’s book of documents (p 544).  There is no basis for the contention that the alert notice was confidential. 

57                  On 27 August 1998, a warrant issued in Perth for Goldie’s arrest in relation to theft of money from Fluor Daniel.  On 30 September 1998, Fluor Daniel obtained summary judgment against Goldie in the Western Australian Supreme Court in the sum of $417,515.30 plus interest.  On 10 November 1998, by operation of a springing order made by Cooper J on 30 October, Goldie’s application to the Federal Court for damages for false imprisonment was dismissed. 

58                  On 31 March 1999, Cooper J dismissed Goldie’s application for review of the AAT decision which had affirmed the delegate’s decision to refuse him a permanent resident visa.  He appealed to the Full Federal Court against that decision.  The appeal was allowed by the Full Court on 14 September 1999.  The AAT decision was set aside and the matter was remitted to the AAT to be heard and determined according to law.  Following a rehearing the AAT dismissed the application on 18 December 1999. 

Factual Background – Goldie is Arrested – 15 February 2000

59                  On 15 February 2000, Goldie was arrested by Detectives at Kogarah in New South Wales on the warrant issued by the Perth Court of Petty Sessions.  The charges on the warrant involved stealing as a servant an amount of approximately $250,000.  He was taken into custody and remanded in custody pending the grant of an extradition order to return to Perth.  The Department was advised that Detective Zadrovich of the WA Police would travel to New South Wales seeking Goldie’s extradition.  On the same day, Donna Riordan the officer in charge of Compliance for DIMA in Perth who is named as the ninth respondent in these proceedings, issued a notice under the Migration Act to Detective Zadrovich advising that Goldie was liable to be held in immigration detention under the Act as an unlawful non-citizen.  The notice recited that Zadrovich was an officer for the purposes of the Act pursuant to s 5 and lawfully authorised to hold Goldie in immigration detention.  Riordan requested that he hold Goldie in immigration detention.  On 17 February 2000, Goldie was extradited from New South Wales to Western Australia to answer three charges of stealing as a servant.  On 16 March 2000, in the Court of Petty Sessions at Perth he was remanded on three counts of stealing as a servant with bail fixed at $50,000 by way of personal bond and a surety of $30,000 together with a condition that he surrender his passport and a reporting condition. 

Factual Background – Refusal of Application for Bridging Visa E – 22-31 March 2000

60                  On 22 March 2000, Goldie’s then solicitor sent a letter to DIMA enclosing an application for a Bridging Visa E.  The letter said:

“We understand that the Department has 48 hours within which to advise whether the application is to be granted or refused.  Could you please advise this office and Mr Goldie as soon as possible.”

The letter was received at the Department on 24 March.  Riordan who was the delegate for the purposes of this application, refused it on the basis that Goldie did not pass the “Character test” under s 501(6)(c)(ii) of the Act.  On 31 March 2000, Goldie applied to the Administrative Appeals Tribunal for review of the decision to refuse him the grant of a Bridging Visa E. 

61                  On 7 April 2000, Goldie commenced the present proceedings in this Court.  On 14 April his bail was revoked.  On 12 June 2000, the AAT affirmed Riordan’s decision to refuse him the grant of a Bridging Visa E.  On 20 June 2000, he appealed to this Court against that decision and that appeal was heard at the same time as these proceedings.

The Causes of Action

62                  Goldie’s amended statement of claim comprises some 212 paragraphs.  It sets out various of the decisions and conduct of the various respondents which have been referred to in the preceding history and seeks to raise causes of action in connection with those decisions and conduct.  Declaratory relief is sought in respect of a number of them, as well as damages for misfeasance in public office, breach of statutory duty, unlawful arrest, false imprisonment, trespass and assault, negligence and negligent mis-statement.  It is not necessary to set them out in detail, it will be sufficient to deal with them under various headings which appear below.

Jurisdiction

63                  The limitations upon the jurisdictions of this Court under the Migration Act raise a major threshold issue in respect of Goldie’s various claims.  It is desirable to review the way in which that jurisdiction is defined.

64                  Section 475(1) of the Act defines the category of decisions known as “judicially-reviewable decisions” thus:

“475(1)  Subject to subsection (2), the following decisions are judicially-reviewable decisions:

(a)       decisions of the Migration Review Tribunal;

(b)       decisions of the Refugee Review Tribunal;

(c)        other decisions made under this Act, or the regulations, relating to visas.”

The exclusions in s 475(2) are carved out of the categories in s 475(1) but none is relevant for present purposes.  The relevant category of  “judicially-reviewable” decisions therefore is “other decisions made under this Act, or the regulations, relating to visas”.  The jurisdiction of the Federal Court with respect to “judicially-reviewable” decisions is conferred by s 486 thus:

“486  The Federal Court has jurisdiction with respect to judicially-reviewable decisions and that jurisdiction is exclusive of the jurisdiction of all other courts other than the jurisdiction of the High Court under section 75 of the Constitution.”

65                  The jurisdiction in respect of judicially-reviewable decisions is limited to that conferred by s 486.  This is made clear by s 485.  That section also excludes any other source of jurisdiction in relation to non-judicially-reviewable decisions.  As Lee J recently observed in Ayub v Minister for Immigration and Multicultural Affairs [2000] FCA 1844, s 485(1) of the Act purports to remove expressly jurisdiction conferred upon the Court by s 39B of the Judiciary Act 1903 and, implicitly, jurisdiction confirmed by the Administrative Decisions (Judicial Review) Act with respect to “judicially-reviewable” decisions and decisions that are not “judicially-reviewable” decisions by reason of the provisions of s 475(2).  Section 485(1) means that a judicially reviewable decision is not a decision in respect of which jurisdiction is conferred on the Court by the ADJR Act.

66                  There is also a time limit of twenty eight days from notification of the decision complained of within which time any application to the Court must be made (s 478) – Hocine v Minister for Immigration and Multicultural Affairs (2000) 99 FCR 269.  The present proceedings were commenced on 7 April 2000.  It is to be noted also that the powers of the Court are confined by s 476 in terms of the grounds upon which the Court may entertain applications for the review of judicially-reviewable decisions. 

67                  Decisions made under the Act relating to visas are judicially-reviewable decisions.  The Court has no jurisdiction to adjudicate upon their validity or otherwise, or to grant relief in relation to them except as provided for in Part 8 of the Act and then only pursuant to applications made within twenty eight days of notification of the decisions.  The grant of a Bridging Visa is a decision under the Act in relation to a visa and is therefore a judicially-reviewable decision.  Given the time that has elapsed between the relevant decisions and the commencement of these proceedings, the Court has no jurisdiction to make the declarations sought by Goldie that the grants of Bridging Visa E’s on 27 February 1998, 20 May 1998 and 19 June 1998 were unlawful (pars 14, 15 and 16 of the prayers for relief).

68                  Goldie also sought declarations that he satisfied the criteria for the grant of Bridging Visas A and B on 13 May 1998 and 2 June 1998 and that he had, by way of substantial compliance, complied with the requirements for applying for those visas.  Related to that he sought declarations that the applications he had made on Forms 1005 on 8 May and 2 June 1998 be treated as applications for Bridging Visas A and Bridging Visas B.  The document submitted to DIMA by Goldie’s solicitors on 13 May 1998 was an application for a Bridging Visa E, albeit it was said by his solicitor to be submitted “without prejudice to Goldie’s entitlement to a bridging visa A”.  The fact that he did not sign the acknowledgment of his understanding of the conditions of that visa which was sent to him by DIMA, does not alter the effect of the grant.  The document submitted on 2 June 1998 was also an application for a Bridging Visa E.  Goldie was granted a further Bridging Visa E on 19 June 1998.  The declarations sought in respect of his entitlement to Bridging Visas A and B at these dates and his substantial compliance with the requirements for applying for such visas, is really an attempt at a collateral attack on the grant of the Bridging Visa E in each case.  The Court, in my opinion, does not have jurisdiction to entertain those claims for relief.  They would, in any event, be hopeless as Goldie on each occasion received what he applied for, namely a Bridging Visa E.  So the relief claimed in pars 17 to 22 inclusive of the prayers for relief cannot be granted.  Nor can the consequential orders he seeks that the Minister determine his migration status between 13 May 1998 or 2 June 1998 and 12 October 1999 as though he had held a Bridging Visa A or a Bridging Visa B (par 26 of the relief).  For the same reason, consequential orders cannot be made that the Minister determine his migration status between 13 May 1998 or 2 June 1998 and 15 January 2000 as having held a Bridging Visa A or a Bridging Visa B (par 27 of the prayer for relief).

The Refusal of the Bridging Visa on 28 March 2000

69                  Goldie claims remedies in the nature of certiorari quashing the decision made on 28 March 2000 to refuse his application for a Bridging Visa E which had been made on 22 March 2000.  The grounds upon which that relief is claimed are said to be “actual bias” and that the decision was “made for improper purposes”.  Goldie, however, chose to seek review of Riordan’s decision in the Administrative Appeals Tribunal.  There he had benefit of full merits review.  Any question of actual bias (of which there is no evidence) or of improper purposes on Ms Riordan’s part (again, of which there is no evidence) is subsumed by the process and decision of the AAT.  There is an appeal in separate proceedings from that decision and that appeal was heard immediately after the hearing of the present proceedings.  The relief sought here is discretionary.  Having regard to the invocation of the Administrative Appeals Tribunal, my discretion would be exercised against the grant of such relief even assuming it were available.  On that basis the relief claimed in pars 23, 24 and 25 of the prayer for relief is refused.

Misfeasance in Public Office

70                  Claims for misfeasance in public office are made against the Commonwealth, the Minister and each of the officers named as respondents save the fourth respondent against whom no relief is now claimed.  Presumably the claims against the Commonwealth and the Minister are vicarious and depend upon establishing the tort against one or more of the respondents.

71                  Misfeasance in public office covers acts by public officers that are beyond power including acts that are invalid for want of procedural fairness.  However it is not enough to show that the knowing commission of an act is beyond power and that damage has resulted.  In Sanders v Snell (1998) 196 CLR 329, Gleeson CJ, Gaudron, Kirby and Hayne JJ at 345 quoted a majority judgment in Northern Territory v Mengel (1995) 185 CLR 307:

“The cases do not establish that misfeasance in public office is constituted simply by an act of a public officer which he or she knows is beyond power and which results in damage.  Nor is that required by policy or by principle.  Policy and principle both suggest that liability should be more closely confined.  So far as policy is concerned, it is to be borne in mind that, although the tort is the tort of a public officer, he or she is liable personally and, unless there is de facto authority, there will ordinarily only be personal liability.  And principle suggests that misfeasance in public office is a counterpart to, and should be confined in the same way as, those torts which impose liability on private individuals for the intentional infliction of harm.  For present purposes, we include in that concept acts which are calculated in the ordinary course to cause harm…or which are done with reckless indifference to the harm that is likely to ensue as is the case where a person, having recklessly ignored the means of ascertaining the existence of a contract, acts in a way that procures its breach.”

After citing this passage the joint judgment in Sanders v Snell went on to say:

“For the purposes of deciding Mengel, the majority considered it sufficient to proceed on the basis that the tort requires an act which the public official knows is beyond power and which involves a foreseeable risk of harm and noted also that there seems much to be said for the view that misfeasance extends to the situation of a public official recklessly disregarding the means of ascertaining the extent of his or her power.”

The court also cited with approval the statement in Mengel that the weight of authority in Australia and the United Kingdom is to the effect that misfeasance in a public office is a deliberate tort in the sense that there is no liability unless either there is an intention to cause harm or the officer concerned knowingly acts in excess of his or her power.

72                  The claim for misfeasance in a public office as against Tunbridge turns upon the conduct of his interview with Goldie on 26 February 1997, his filing of a typewritten transcript of his notes of that interview, knowing it not to be an accurate record and to contain subjective comments interpreting Goldie’s answers and his rejection of the substantive visa application on 20 May 1997.  As to the latter, it is said also that his reference to the refusal of the application as a result of failed extradition proceedings was written in the knowledge that extradition proceedings in Scotland had not been continued by the Procurator Fiscal as a result of insufficient evidence, and not for the stated “commercial reasons” set out in his record of decision.  The claim against Tunbridge also turns upon his treatment of Spence’s statement, his amendment of it and the filing by himself and Gregg of that document in the AAT. 

73                  The claim for misfeasance in a public office against Cain relates to his apprehension of Goldie and taking him into detention when it is said he knew or ought to have known that Goldie held a valid bridging visa until 18 March 1998, that he was not an unlawful non-citizen and could not be detained pursuant to s 189 of the Migration Act.  It also relates to Cain’s advice to Goldie that he could apply only for a Bridging Visa E in February 1998.  It was said he knew or ought to have known that Goldie satisfied the criteria for a Bridging Visa A or B and did not satisfy the criteria for a Bridging Visa E.  The things Cain did were said to have been done with reckless disregard to the extent of his power and intending to cause harm to Goldie. 

74                  As against McCormack, the claim for misfeasance in a public office relates to the imposition of oppressive conditions on the Bridging Visa E when it was said he knew or ought to have known that Goldie held a valid Bridging Visa B, did not satisfy the criteria for a Bridging Visa E and did satisfy the criteria for a Bridging Visa A.  Moreover it was said he knew or ought to have known that the visa granted to Goldie should have no conditions.  Again, McCormack’s conduct is said to have been done with reckless disregard to the extent of his power and intending to cause harm to Goldie.

75                  Hoenig in authorising the grant of a Bridging Visa E was again said to have been acting recklessly on substantially the same basis as that pleaded against the other respondents.

76                  Riordan’s conduct in issuing an authority to hold in detention on 15 February 2000 is raised against her in the misfeasance claim.  She signed an “authority to hold in detention” on 24 March 2000.  She refused to grant him a Bridging Visa E.  She is said not to have followed procedures required by s 501G of the Migration Act and knew or ought to have known that he satisfied the criteria for the grant of such a visa.  Her action was said to have involved a foreseeable risk of harm to Goldie in that in being refused a visa he would continue to be held in custody and would be prejudiced in being detained.

77                  It is sufficient to say that whatever errors may have been made in relation to the detention of Goldie in February 1998 in the belief that he did not hold a then current visa, the criteria for misfeasance in a public office are simply not made out.  There is no evidence, in my opinion, of intention to harm him on the part of any of the respondents or that the respondents knowingly acted in excess of their power.  All of the claims based on misfeasance in a public office fail.  This includes, of course, the claims against the Commonwealth and the Minister which appear to depend entirely upon the claims against the individual respondents which I have already dealt with. 

78                  These conclusions dispose of the prayers for relief against Tunbridge, Cain and Riordan (pars 29 to 34 inclusive, 37, 41, 44, 45, 46 and 47).

Breach of Statutory Duty and Negligence

79                  In so far as these torts are raised in the amended statement of claim, they both relate to the arrest and detention of Goldie as a suspected unlawful non-citizen on 24 February 1998.  They are, however, partly subsumed in the tortious claim for false imprisonment.  If that claim succeeds there is no need to rely upon breach of statutory duty or negligence.  If that claim fails on the basis that Goldie’s detention was lawful, then the claims for breach of statutory duty cannot succeed.  The issue of negligence in that event requires further consideration as against the Minister and the Commonwealth.

False Imprisonment

80                  Goldie’s detention on 24 February 1998 was effected in purported reliance upon s 189 of the Migration Act which provides:

“189(1)  If an officer knows or reasonably suspects that a person in the migration zone is an unlawful non-citizen, the officer must detain the person.”

Subsection (2) is not relevant for present purposes. 

81                  It was submitted that as a result of his searches of the Department’s computer records and those records showing Goldie’s last visa as having ceased on 27 February 1996, Cain reasonably suspected that Goldie was an unlawful non-citizen and that he was therefore required to detain him.  His further inquiries after Goldie’s remonstrations following his being taken into detention did not, in Cain’s mind, displace that reasonable suspicion.

82                  The argument that a departmental computer error provides grounds for a reasonable suspicion that warrants the detention of an individual is an unattractive one to say the least.  In this case however, s 189 imposes the duty to detain upon the individual officer with the requisite state of mind.  It is the reasonableness of his suspicion that must be determined in assessing whether the condition is satisfied, rather than the reasonableness of the detention in a wider sense.  This is not to suggest that the officer’s suspicion can be based upon purely subjective considerations.  Having regard to the repeated inquiries that he made, Cain’s suspicion, which was in fact a belief, was reasonable.  By virtue of s 189 he was under a duty to detain Goldie.  The detention was not unlawful.  Nevertheless, in my opinion, s 189 as this case demonstrates, provides inadequate protection to individuals against wrongful detention in circumstances such as those which have arisen in this case.  But those circumstances do not render the detention unlawful.  The adequacy of protection against error is a matter for the legislature.  The detention having been lawful, the claim based on false imprisonment is not made out.   I should add that if there were any residual scope for a claim of negligence on the part of Cain, I do not consider that it is made out.  He took reasonable steps in the circumstances to verify the cessation of Goldie’s visa.

83                  In so far as Goldie asserts that he was assaulted in the course of the detention, I reject that claim.  The pat searches and medical examination as explained by the officers at the Perth Airport Detention Centre were incidental to and elements of the detention which was lawful.

Negligence by the Minister

84                  There remains a question whether there could be said to have been negligence attributable to the Minister by reason of the computer error that formed the basis of the suspicion in Cain’s mind that Goldie’s visa had ceased.  All that is known is that at some point a passport identification number was wrongly entered upon Goldie’s return to Australia thus creating the false impression in the computer records that he had not returned, on the basis of which his Bridging Visa B was recorded as having ceased in February 1996.  The circumstances in which that error arose do not emerge from the evidence.  Nothing is known of who was responsible for the error nor the systems in place for the entry of the relevant identification numbers.  Nor is there a factual basis to assess foreseeability of harm arising from such error at the time that it was made.  In the circumstances no claim for negligence against the Minister or the Commonwealth is made out.

Privacy

85                  The amended statement of claim asserts that the respondents owed a duty to comply with the provisions of the Migration Act and the Privacy Act 1988 and “take reasonable care in the administration of those acts”.  It is alleged that in breach of that duty Gregg, Cain, Hoenig and Riordan released confidential information with respect to Goldie’s migration matters on 24 February 1998, 20 August 1998 and 27 March 2000.  As a result of what are said to be the “unlawful, positive and intentional acts” of these respondents Goldie says he has suffered harm and loss.  These things are said to have been done by the respondents with reckless disregard to the extent of their power and intending to cause harm to Goldie.  There appears to be no specific claim for relief which relates to these allegations.  There are no provisions of the Migration Act relating to a duty of confidentiality.

86                  In s 16 of  the Privacy Act 1988  it is provided:

“16  An agency shall not do an act or engage in a practice, that breaches an Information Privacy Principle.”

Information Privacy Principles are set out in s 14.  Principle 11 prohibits record keepers with the possession or control of records containing personal information from disclosing that information to a person, body or agency other than the individual concerned except in specified circumstances.  They include the prior consent of the individual concerned to the disclosure, that the disclosure is required or authorised by or under law or that the disclosure is reasonably necessary for the enforcement of the criminal law or of a law imposing a pecuniary penalty or for the protection of the public revenue.  A record here means a document, data base, photograph or other pictorial representation of a person (s 6).  Personal information means:

“…information or an opinion (including information or an opinion forming part of a data base), whether true or not, and whether recorded in a material form or not, about an individual whose identity is apparent, or can reasonably be ascertained, from the information or opinion.”

87                  It is sufficient for present purposes to say that I accept the submission for the respondents that, even if the plea of a breach of the Privacy Act were made out, there is no relevant claim for relief apparent from the amended statement of claim.  The Privacy Act itself provides for complaints to be made to the Privacy Commissioner (s 36), investigation by the Commissioner of the act or practice complained of (s 41) and a determination by the Commissioner dismissing the complaint or finding it substantiated (s 52).  The determination may include a declaration that the complainant is entitled to a specified amount by way of compensation for any loss or damage suffered by reason of the act or practice the subject of the complaint (s 52(1)(b)(iii)).  The Commissioner or the complainant may commence proceedings in the Federal Court for an order to enforce a determination under the provisions just referred to (s 55).  This establishes a process which has not been followed in this case.  Part VIII of the Act deals with the breach of obligations of confidence to which an agency or a Commonwealth officer is subject, however that obligation arose, and provides for a “confider” to recover damages from a “confidant” in respect of a breach of an obligation of confidence with respect to personal information (s 93).

88                  I accept the respondents’ submissions that there is nothing pleaded nor do the facts disclose the release of confidential information about Goldie to a third party in a way that would attract the application of Part VIII.

Attempted Joinder of the Tenth Respondent

89                  For completeness I should add that there was an attempt to join the Administrative Appeals Tribunal as a tenth respondent in this case and to claim against it relief in the nature of certiorari quashing its decision of 18 February 1998 which had affirmed the Minister's decision of 20 May 1997 on the basis that it was induced or affected by fraud.  The amendment was disallowed because the relief claimed would be futile.  The AAT decision in question was set aside by the decision of the Full Court on 14 September 1999 and the matter was remitted to the AAT to be heard and determined according to law.  Ultimately the AAT again dismissed the application on 18 December 1999. 

Conclusion

90                  For the preceding reasons this application will be dismissed with costs.

Associate:

Dated:              22 December 2000