FEDERAL COURT OF AUSTRALIA

Sadiqi v Commonwealth of Australia (No 3) [2010] FCA 596

Citation:		Sadiqi v Commonwealth of Australia (No 3) [2010] FCA 596

Parties:		ALI REZA SADIQI (FORMERLY A MINOR (P1/2003) NOW OF FULL AGE AND A STUDENT) v THE COMMONWEALTH OF AUSTRALIA and PHILIP MAXWELL RUDDOCK FORMERLY THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

File number:		WAD 156 of 2003

Judge:		MCKERRACHER J

Date of judgment:		11 June 2010

Catchwords:		MIGRATION – orders consequent upon the answering of preliminary questions – issues remaining for trial – re‑agitation of arguments – act of state doctrine – authorisation of acts by Australian Protective Services officers pursuant to Australian Protective Service Act 1997 (Cth) - costs

Legislation:		Migration Act 1958 (Cth) s 198A(3)

Cases cited:		Binyam Mohamed v Secretary of State for Foreign and Commonwealth Affairs [2010] EWCA Civ 65 Habib v Commonwealth of Australia (No 2) (2009) 175 FCR 350 Habib v Commonwealth of Australia (2010) 113 ALD 469 Hicks v Ruddock (2007) 156 FCR 574 Sadiqi v Commonwealth of Australia (No 2) (2009) 181 FCR 1

Date of last submissions:	30 March 2010

Place:	Perth

Division:	General

Category:	Catchwords

Number of paragraphs:	52

Counsel for the Plaintiff:	JL Cameron

Solicitor for the Plaintiff:	Jarman McKenna

Counsel for the Defendants:	P Hanks QC with P Macliver and S Donaghue

Solicitor for the Defendants:	Australian Government Solicitor

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY
GENERAL DIVISION	WAD 156 of 2003

BETWEEN:

ALI REZA SADIQI (FORMERLY A MINOR (P1/2003) NOW OF FULL AGE AND A STUDENT)

Plaintiff

AND:	THE COMMONWEALTH OF AUSTRALIA First Defendant PHILIP MAXWELL RUDDOCK FORMERLY THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Second Defendant

JUDGE:	MCKERRACHER J
DATE OF ORDER:	11 JUNE 2010
WHERE MADE:	PERTH

THE COURT ORDERS THAT:

1. The plaintiff’s claims for relief:

1.1 against the second defendant for the issue of a writ of certiorari quashing the decision made by the second defendant on 2 October 2001 to make a declaration in respect of the Republic of Nauru (Nauru) under s 198A(3) of the Migration Act 1958 (Cth) by reason of the allegations pleaded in paragraph 12 of the plaintiff’s further re-amended statement of claim filed 2 December 2008 (the amended statement of claim);

1.2 against the second defendant for damages for breach of guardianship duty as pleaded in paragraphs 87, 88 and 91 of the amended statement of claim;

1.3 against the first and second defendants for damages for breach of duty of care by reason of the matters pleaded in paragraphs 90.1.2, 90.1.4 and 90.1.5 and 90.2 (in so far as it refers to paragraphs 88.1, 88.2, 88.3, 88.4, 88.8 and 88.9) of the amended statement of claim;

1.4 against the first and second defendants for damages for false imprisonment in the course of the plaintiff’s removal from Christmas Island on 28 December 2001 and in Nauru from 29 December 2001 to 1 November 2002 as pleaded in paragraphs 39, 46 and 92 of the amended statement of claim; and

1.5 against the second defendant for damages for misfeasance in public office by the second defendant as pleaded in paragraphs 39, 40, 41, 42 and 94 of the amended statement of claim;

be dismissed.

2. The matter be re-listed for directions as to trial of the remaining issues in dispute, namely, the plaintiff’s claims for damages:

2.1 against the first and second defendants for breach of duty by reason of the matters pleaded in paragraphs 90.1.2, 90.1.3, 90.1.6-90.1.16 and 90.2 (in so far as it refers to paragraphs 88.5, 88.6, 88.7, 88.10 and 88.11-88.26) of the plaintiff’s amended statement of claim;

2.2 against the first and second defendants for false imprisonment from the plaintiff’s departure from Ashmore Reef on 11 November 2001 until his removal from Christmas Island on 28 December 2001 and from the plaintiff’s departure from Nauru on 1 November 2002 until his release from detention in Perth on 25 February 2004 (as pleaded in paragraphs 29, 30, 32, 33, 50, 51, 86 and 92 of the amended statement of claim); and

2.3 against the second defendant for conspiracy to injure (as pleaded in paragraphs 97 and 98 of the amended statement of claim).

3. Costs of the trial to date are reserved.

4. Subject to further order, time within which to appeal any part of these orders will not commence to run until final judgment following trial.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using eSearch on the Court’s website.

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY
GENERAL DIVISION	WAD 156 of 2003

BETWEEN:

ALI REZA SADIQI (FORMERLY A MINOR (P1/2003) NOW OF FULL AGE AND A STUDENT)

Plaintiff

AND:	THE COMMONWEALTH OF AUSTRALIA First Defendant PHILIP MAXWELL RUDDOCK FORMERLY THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Second Defendant

JUDGE:	MCKERRACHER J
DATE:	11 June 2010
PLACE:	PERTH

REASONS FOR JUDGMENT

INTRODUCTION

1 In Sadiqi v Commonwealth of Australia (No 2) (2009) 181 FCR 1 (Sadiqi (No 2)), I answered certain preliminary questions which had been put in argument on behalf of the parties in this proceeding.

2 Although on delivery of the reasons I invited the parties to attempt to reach agreement as to the appropriate course to be taken to pursue completion of the trial, agreement has not been possible. Accordingly, I have received additional submissions from the parties in relation to their respective positions.

3 To put those arguments in context it is necessary to restate the factual basis upon which the questions were posed, to examine the questions and answers and finally, to make provision for the next step forward in this matter.

4 The agreed factual background in the matter was as follows:

AGREED FACTS AND DOCUMENTS

14 In addition to the following facts being agreed, the parties have agreed as to the relevance and authenticity of a modest number of documents which are also referred to in the agreed facts.

The Plaintiff and his Brother

15 The plaintiff is a citizen of Afghanistan. He is of the Hazara race and a follower of the Shi’ite sect of the Islamic religion.

16 In 2000, the plaintiff left Afghanistan without a valid Afghani passport or other travel document and travelled to Indonesia, with the intention of travelling from Indonesia to Australia and thereafter permanently residing in Australia.

17 In or about August 1999, the plaintiff’s elder brother, Hussain Ali Sadiqi, left Afghanistan.

18 Hussain Ali Sadiqi arrived in Australia by boat on or about 22 October 1999 and was placed in immigration detention. On or about 11 April 2000, he was granted a protection visa and released from detention. He took up residence in Perth, Western Australia.

Rescue and Ashmore Reef

19 In or about October 2001, the plaintiff also obtained passage to Australia on an Indonesian coastal vessel travelling, in the company of approximately 161 other asylum seekers, from Indonesia to the Territory of Ashmore and Cartier Islands. The plaintiff was not the holder of a visa under the Migration Act. At that time, the plaintiff was 16 years of age.

20 The Territory of Ashmore and Cartier Islands is an external territory of Australia to which the Migration Act extends pursuant to s 7(1) and (2) of that Act.

21 On the enactment of the Migration Amendment (Excision from Migration Zone) (Consequential Provisions) Act 2001 (Cth) (the Excision Act) the Territory of Ashmore and Cartier Islands became an ‘excised offshore place’ for the purposes of the Migration Act. That Act inserted a definition of ‘excision time’ that provided that the ‘excision time’ for the Territory of Ashmore and Cartier Islands was 2.00 pm ACT time on 8 September 2001.

22 On 8 November 2001, the vessel on which the plaintiff was travelling, which was codenamed SIEV 10 by Australian authorities, was intercepted by vessels of the first defendant, caught fire and sank while in international waters between Indonesia and Australia. The plaintiff was rescued and taken aboard the ACV Arnhem Bay. Two other passengers on SIEV 10 drowned.

23 On 8 November 2001, the Arnhem Bay, with the plaintiff on board, arrived at the outer lagoon at Ashmore Reef in the Territory of Ashmore and Cartier Islands. The plaintiff did not disembark at Ashmore Reef.

24 In the period from 8 November 2001 to 11 November 2001 inclusive, the outer lagoon at Ashmore Reef was not a port appointed under s 15 of the Customs Act 1901 (Cth) or a port appointed by the Minister under s 5(5) of the Migration Act.

25 On 10 November 2001, officers of the first defendant on board the Arnhem Bay informed all of the non-citizens on board the Arnhem Bay that they were to be transferred to HMAS Tobruk for the purpose of being transported to Christmas Island. After being informed of the proposed transfer, the plaintiff indicated to the Executive Officer of HMAS Tobruk that he did not wish to go to Christmas Island and that he wanted to be taken to the Australian mainland.

26 On 10 November 2001, after the plaintiff refused to disembark from the Arnhem Bay, officers of the first defendant placed him in plastic flexicuffs and transferred him to HMAS Tobruk.

Christmas Island

27 The Territory of Christmas Island is an external territory to which the Migration Act extends pursuant to s 7(1) and (2) of the Migration Act.

28 On the enactment of the Excision Act, the Territory of Christmas Island became an ‘excised offshore place’ for the purposes of the Migration Act. That Act inserted a definition of ‘excision time’ that provided that the ‘excision time’ for the Territory of Christmas Island was 2.00 pm ACT time on 8 September 2001.

29 On 11 November 2001, HMAS Tobruk, with the plaintiff on board, sailed from Ashmore Reef to Christmas Island. In the course of the voyage from Ashmore Reef to Christmas Island, HMAS Tobruk sailed through international waters.

30 On 14 November 2001, the HMAS Tobruk arrived at Christmas Island with the plaintiff on board. The plaintiff disembarked at Christmas Island on that date.

31 On 14 December 2001 the second defendant decided that unaccompanied minors detained on Christmas Island as unlawful non-citizens should be transferred to the Republic of Nauru (Nauru) and Manus Island (in Papua New Guinea) as logistically required.

32 The plaintiff was detained on Christmas Island between 14 November 2001 and 28 December 2001. He was held by officers or agents of the first defendant in an immigration detention centre on Christmas Island established under the Migration Act.

Nauru

33 On 10 September 2001, a Statement of Principles was signed on behalf of each of the first defendant and Nauru.

34 On 2 October 2001, the second defendant made a declaration in writing declaring Nauru as a declared country under s 198A(3) of the Migration Act, and stating the second defendant's satisfaction ‘that Nauru meets the criteria set out in section 198A(3) of the Migration Act 1958’.

35 On 11 December 2001, a Memorandum of Understanding (MOU) was agreed between the first defendant and Nauru, which replaced the Statement of Principles.

36 A non-citizen of Nauru who is in Nauru without a visa is liable to arrest under s 5(2) of the Immigration Act 1999 (Nauru) (the Nauru Immigration Act) and to punishment for an offence under s 13(1) of that Act, including imprisonment. Such a person is also liable to removal from Nauru by order of the Principal Immigration Officer made in exercise of the power conferred by s 11(1) of the Nauru Immigration Act, and to detention under s 11(4) of the Nauru Immigration Act pending that removal. With the approval of the Minister, the person might be removed ‘to a place in the country to which he belongs’, or to any other place to which he consents to be removed and the government of which consents to receive him: s 11(6)(b) of the Nauru Immigration Act.

37 On 19 December 2001 the Minister for Justice and Customs made a direction pursuant to s 6(1) of the Australian Protective Service Act 1987 (Cth) (the APS Act) that the functions of the Australian Protective Service (the APS) were to provide protective and custodial services, including, inter alia, the conduct of security surveys of premises, a custodial service and all services reasonably related to the provision of a custodial service, both in Australia and in a foreign country. The direction was published in Commonwealth of Australia Gazette No. S. 525 dated 21 December 2001.

38 On 28 and 29 December 2001, the plaintiff was taken by officers of the first defendant from Christmas Island to Nauru, travelling by aircraft, via Perth, and arriving in Nauru on 29 December 2001. In the course of the journeys from Christmas Island to Perth and from Perth to Nauru, the plaintiff was flown through international airspace. The plaintiff was not invited to make submissions in opposition to being taken to Nauru.

39 Upon his arrival in Nauru, the plaintiff was taken to ‘State House’, a site designated by the Government of Nauru for the accommodation of asylum seekers.

40 On 7 January 2002 the plaintiff was granted a special purpose visa by the Principal Immigration Officer of Nauru pursuant to the Nauru Immigration Act and the Immigration Regulations 2000 (Nauru). This special purpose visa authorised the plaintiff's entry and stay in Nauru on ‘humanitarian grounds’, such stay not to exceed beyond 6 months from the date of arrival. The plaintiff did not apply for the visa and did not authorise any other person to apply on his behalf.

41 The special purpose visa was subject to the following conditions:

1. Residence in Nauru shall be restricted to sites designated by the Government of Nauru for the accommodation of asylum seekers;

2. Movement within Nauru shall be restricted to within the above-mentioned sites except with the consent of the Office of the President of Nauru;

3. Movement within Nauru outside of the designated sites shall be under escort of security personnel, as authorised by the Office of the President of Nauru;

4. Completion of humanitarian endeavours shall, for the purpose of this Visa, be as determined by the Office of the President of Nauru, through directions of the undersigned and shall constitute termination of such visa.

42 The plaintiff resided at State House until he was transferred to ‘Topside’, another site designated by the Government of Nauru for the accommodation of asylum seekers. The State House and Topside sites were provided by the Government of Nauru pursuant to the MOU referred to above and were maintained and operated by a non-government organization, the ‘International Organisation for Migration’ under contract with the first defendant.

43 On 15 July 2002, the plaintiff was granted a further special purpose visa on the same terms and conditions as the first special purpose visa referred to above, save that the plaintiff's further stay in Nauru was not to exceed beyond 3 months from the date of issuance. The plaintiff did not apply for the visa and did not authorise any other person to apply on his behalf.

44 Officers of the APS participated in the provision of security services at the State House and Topside sites in Nauru at which the plaintiff resided.

45 Both State House and Topside were surrounded by wire fencing which was patrolled from time to time by officers of the APS.

46 When the plaintiff left State House or Topside to attend school, go to the beach or to go shopping, he was often accompanied by an officer of the APS.

47 The plaintiff was interviewed by an officer of the first defendant on 11 March 2002 in relation to his claims for protection.

48 On 19 June 2002 the interviewing officer referred to above determined that the plaintiff was not a refugee under Art 1A of the Convention.

49 On 10 July 2002 the plaintiff sought review of the determination referred to above and was interviewed by a second officer of the first defendant (the Review Officer).

50 By letter dated 12 July 2002, the plaintiff advised the Review Officer referred to above that his brother, Hussain Ali Sadiqi, was currently living in Australia as a refugee and provided his address.

51 On 8 September 2002 the Review Officer referred to above again determined that the plaintiff was not a refugee under Art 1A of the Convention.

Perth

52 On 1 November 2002 officers of the first defendant brought the plaintiff, with his consent, from Nauru to Australia for the purpose of giving evidence at a coronial inquest into the deaths of the two passengers aboard the SIEV 10. The plaintiff arrived in Perth on 2 November 2002.

53 After his arrival in Perth on 2 November 2002, the plaintiff was detained by officers or agents of the first defendant, initially at the Perth Immigration Detention Centre, and from 2 November 2002 until 13 June 2003 at the Marracoonda Motel, Belmont, Western Australia.

54 From 13 June 2003 until 26 September 2003 the plaintiff was detained by officers or agents of the first defendant at the Inter City Motel. From 26 September 2003 until 25 February 2004 the plaintiff was detained by officers or agents of the first defendant at the Perth Immigration Detention Centre.

55 During the plaintiff's periods of detention at the Marracoonda Motel and the Inter City Motel, those Motels were approved places of immigration detention pursuant to subpar (b)(v) of the definition of immigration detention in s 5 of the Migration Act.

56 On 29 September 2003 the plaintiff applied to the Refugee Review Tribunal (the Tribunal) for an assessment of his refugee status pursuant to s 198C of the Migration Act.

57 On 18 December 2003 the Tribunal found that the plaintiff was a refugee within the meaning of Art 1A of the Convention.

58 On 23 February 2004 the plaintiff made an application for a temporary protection visa pursuant to s 198C(8)(b) of the Migration Act.

59 On 25 February 2004 the second defendant's successor as Minister granted the plaintiff a three year temporary protection visa and he was released from immigration detention on that date.

60 In addition to the foregoing facts being agreed by the parties, the parties have accepted the authenticity of six documents. The first of those documents is the Statement of Principles signed on 10 September 2001 by the President of Nauru and the Minister for Defence for the first defendant. The Statement of Principles is relatively brief. It provides that each of the countries, wishing to build on and strengthen existing friendly relations between the two countries, have reached the following Statement of Principles. This Statement of Principles, together with any supporting administrative arrangements was said to be to ‘provide the basis for joint cooperation in humanitarian endeavours relating to asylum seekers, “the persons”’. There were then ten principles in these terms:

1. Australia will bear all costs related to activities conducted under this Statement of Principles, and will reasonably compensate Nauru for its assistance and for any losses incurred in this endeavour.

2. All activities will be conducted in accordance with the Constitutions and relevant domestic laws of the two countries.

3. Nauru will accept persons for determination of their status, as jointly determined under administrative arrangements, from time to time, including those persons currently on HMAS Manoora, with the exception of those to be taken to New Zealand.

4. Both countries will fully consult each other on administrative arrangements made in relation to this Statement of Principles.

5. Australia will meet all reasonable administrative costs incurred by Nauru in implementing this Statement of Principles.

6. Australia will ensure that all persons taken by Nauru will have left within as short a time as is reasonably necessary to complete the humanitarian endeavours referred to in this Statement of Principles.

7. The ‘Anaoe Village’ and the ‘Topside Sports Oval’ as required for overflow, will be the two sites on Nauru, where the persons will be received and accommodated in order to have their status determined.

8. All costs of establishing, operating and renting these sites in order to receive and accommodate the persons will be borne by Australia.

9. Both sites will be returned to their original condition or better, on conclusion of activities related to this Statement of Principles.

10. Communications concerning the day to day operation of activities undertaken in accordance with this Statement of Principles, will be between the Office of the President and the Australian Administrative Centre in Nauru.

61 The second document agreed was the Instrument of Declaration signed by the second defendant on 2 October 2001. It is brief. It is headed ‘The Instrument of Declaration’ and reads:

I hereby declare the Republic of Nauru as a declared country under section 198A(3) of the Migration Act 1958. I am satisfied that Nauru meets the criteria set out in section 198A(3) of the Migration Act 1958.

This declaration will be in effect until 1 October 2002.

62 A third document agreed between the parties was the MOU between the Republic of Nauru and the first defendant for cooperation in the administration of asylum seekers and related issues. Again, this document is not extensive (four and a half pages). It is not presently necessary to record all of its content. It is an expansion upon and development of the Statement of Principles. It also reflects in the opening passage that it is directed to strengthening the friendly relations between the two countries, recognising with humanitarian sympathy the dilemma of ‘asylum seekers’ (referred to as ‘certain persons’), wishing to cooperate bilaterally on an amicable, effective and mutually beneficial basis in the administration of these persons, and in supporting regional efforts to combat people smuggling. That MOU was signed on 11 December 2001 as indicated in the Statement of Agreed Facts. It is accompanied by a schedule dealing with development strategy and financial assistance provided by Australia to Nauru in the form of health, scholarships, study programs and other general forms of assistance. It also includes that there will be provision of training to local law enforcement officers as recommended in the Australian Protective Services Report to a value of AUD$150,000.

63 The fourth document identified was the Commonwealth of Australia Gazette for Friday, 21 December 2001 containing the directive from the Minister for Justice and Customs signed on 19 December 2001 stipulating the nature of the protective and custodial functions of the APS not including bodyguard services. Also provided are two special purpose visa grants made by the Principal Immigration Officer of the Republic of Nauru in respect of various asylum seekers identified in attached lists. The terms of the visas are those indicated above in the Statement of Agreed Facts.

AGREED PRELIMINARY QUESTIONS

5 The preliminary questions and answers were as follows:

Ashmore Reef

1. For the purposes of the Immigration (Guardianship of Children) Act 1946 (Cth) (the IGOC Act), when the plaintiff entered the coastal sea adjacent to the Territory of Ashmore and Cartier Islands on 8 November 2001:

1.1 did the plaintiff ‘enter Australia’ within the meaning of s 4AAA(1)(b) of the IGOC Act?

Answer: no

1.2 did the second defendant become the plaintiff’s guardian by reason of s 6 of the IGOC Act?

Answer: no

2. For the purposes of the Migration Act, when the plaintiff arrived at the outer lagoon at Ashmore Reef on 8 November 2001:

2.1 did the plaintiff ‘enter Australia’ within the meaning of s 5 of the Migration Act?

Answer: no

2.2 was the plaintiff ‘in Australia’ for the purposes of s 189(2) of the Migration Act?

Answer: yes

2.3 did the plaintiff become an ‘offshore entry person’ as defined in s 5 of the Migration Act?

Answer: no

3. If the answer to question 1.1. is ‘yes’, did the plaintiff leave Australia for the purposes of s 6A of the IGOC Act when the plaintiff was taken from Ashmore Reef on 11 November 2001, arriving in Christmas Island on 14 November 2001?

Answer: no

4. If the answer to question 3 is ‘yes’, was the consent in writing of the second defendant to the plaintiff leaving Australia required pursuant to s 6A(1) of the IGOC Act?

Answer: yes

Christmas Island

5. When the plaintiff arrived at Christmas Island on 14 November 2001:

5.1 did the plaintiff ‘enter Australia’ within the meaning of s 4AAA(1)(b) of the IGOC Act?

Answer: yes

5.2. did the plaintiff ‘enter Australia’ within the meaning of s 5 of the Migration Act?

Answer: yes

5.3. did the plaintiff become an ‘offshore entry person’ as defined in s 5 of the Migration Act?

Answer: yes

Christmas Island to Nauru, via Perth

6. When the plaintiff was taken from Christmas Island to Perth, en route to Nauru, on 28 December 2001:

6.1. did the plaintiff leave Australia for the purposes of s 6A of the IGOC Act?

Answer: no

6.2. did the plaintiff cease to be an ‘offshore entry person’ as defined in s 5 of the Migration Act, if the plaintiff was such a person when he left Christmas Island?

Answer: no

Nauru

7. Is the plaintiff precluded from challenging the validity of the second defendant’s declaration of Nauru under s 198A(3) of the Migration Act by reason of his application pursuant to s 198C of that Act which led to him being granted a temporary protection visa on 25 February 2004?

Answer: yes

8. If the answer to question 7 is ‘no’, does any of the criteria in s 198A(3) of the Migration Act constitute a jurisdictional fact, the existence of which is relevant to the validity of the second defendant's declaration of Nauru under s 198A(3) of the Migration Act?

Answer: no

9. If the answer to question 7 is ‘yes’ or the answer to question 8 is ‘no’, is the declaration made by the second defendant on 2 October 2001, that the Republic of Nauru is a declared country under s 198A(3) of the Migration Act, invalid?

Answer: no

10. If the answer to question 7 is ‘yes’ or the answer to question 9 is ‘no’, did s 198A of the Migration Act authorise officers or agents of the first defendant to take the plaintiff from Christmas Island to Nauru, via Perth, on 28 and 29 December 2001?

Answer: yes

11. If the answer to question 10 is ‘yes’:

11.1. was the consent in writing of the second defendant to the plaintiff leaving Australia required pursuant to s 6A(1) of the IGOC Act?

Answer: no

11.2. did any (and if so which) of the following actions involve a breach of the second defendant's guardianship duties imposed by ss 6 and/or 6A of the IGOC Act:

(a) the second defendant’s decision that unaccompanied minors detained on Christmas Island as unlawful non-citizens, including the plaintiff, be transferred from Christmas island to Nauru, as logistically required; or

(b) the taking of the plaintiff from Christmas Island to Nauru on 28 and 29 December 2001?

Answer: no

12. Was the deployment of Australian Protective Services Officers in Nauru authorised under the provisions of the Australian Protective Service Act 1987?

Answer: yes

Perth

13. Was the plaintiff’s detention in Australia from 1 November 2002 until 25 February 2004 authorised and/or required by ss 189(1) and 196 of the Migration Act?

Answer: inappropriate to answer

IGOC Act

14. Does s 6 of the IGOC Act impose any duties on the second defendant, in his capacity as guardian of a non-citizen child who arrives in Australia, the breach of which duties is enforceable by any cause of action sounding in damages?

Answer: no (as the question is specifically formulated)

New Proposed Question – Migration Act – Detention

Reasonable Suspicion

By amended notice of motion the defendants also requested the Court to answer the following questions as preliminary questions:

NM-1 If the answer to Question 2.2 is ‘yes’, did the facts that:

(a) the Plaintiff had travelled towards Australia from Indonesia on board the SIEV 10, an Indonesian coastal vessel, in the company of approximately 161 other asylum seekers; and

(b) the Plaintiff did not hold a visa that entitled him to enter or remain in Australia;

provide a reasonable basis on which an officer of the First Defendant could suspect that the Plaintiff was seeking to enter the migration zone and that, if the Plaintiff entered the migration zone, the Plaintiff would be an unlawful non-citizen.

Answer: inappropriate to answer

NM-2 If the answer to question NM-1 is ‘yes’, was the plaintiff’s detention, from the time of the departure of HMAS Tobruk from Ashmore Reef on 11 November 2001 until the arrival of HMAS Tobruk at Christmas Island on 14 November 2001, required by s 189(2) and 196 of the Migration Act?

Answer: inappropriate to answer

New Proposed Question - Migration Act – Detention

The amended motion of the defendants seeks to have answered the following additional question:

NM-3 Was the Plaintiff’s detention on Christmas Island between 14 November 2001 and 28 December 2001 authorised and/or required by ss 189(2), 189(3) and/or 196 of the Migration Act?

Answer: inappropriate to answer

The defendants sought to raise additional questions under question NM-4. Question NM-4 is in the following terms:

NM-4 In relation to the period from 29 December 2001 to 1 November 2002, when the Plaintiff was present in Nauru and his presence was authorised by, and subject to the conditions attached to the special purpose visas issued by the Principal Immigration Officer of Nauru pursuant to the Immigration Act 1999 (Nauru):

NM-4.1 Is the Plaintiff’s claim that he was falsely imprisoned in Nauru non-justiciable in this Court because it would infringe the act of state doctrine if the Court were to adjudicate on that claim?

Answer: yes

NM-4.2 If the answer to Question NM-4.1 is no, did the conditions attached to each special purpose visa issued to the Plaintiff by the Principal Immigration Officer of Nauru pursuant to the Immigration Act 1999 (Nauru) subject the Plaintiff to “detention” for the purposes of the tort of false imprisonment?

Answer: does not arise

NM-4.3 If the answer to Question NM-4.2 is ‘yes’, was any restraint imposed on the Plaintiff in order to enforce the conditions on each special purpose visa issued to the Plaintiff, lawful according to the law of Nauru?

Answer: does not arise

6 The defendants contend that the appropriate orders consequent upon the answering of the questions are that the plaintiff’s claim for relief:

· against the second defendant for the issue of writ of certiorari quashing the decision made by the second defendant on 2 October 2001 to make a declaration in respect of the Republic of Nauru (Nauru) under s 198A(3) of the Migration Act 1958 (Cth)(Migration Act) by reason of the allegations pleaded in para 12 of the plaintiff’s further re-amended statement of claim of 2 December 2008 (the amended statement of claim);

· against the second defendant for damages for breach of guardianship duty;

· against the first and second defendants for damages for breach of duty of care by reason of certain matters pleaded in the amended statement of claim;

· against the first and second defendants for damages for false imprisonment on removal from Christmas Island and in Nauru;

· against the second defendant for damages for misfeasance in public office;

all be dismissed.

7 The defendants also seek costs in relation to dismissal of those claims and 75 per cent of the costs of the determination of the preliminary questions.

ISSUES CONCERNING NAURU

8 I concluded in relation to question 7 that the plaintiff is precluded from challenging the validity of the second defendant’s declaration as to Nauru. In addition to that answer, and in answer to question 8, in any event even if question 7 had been answered ‘no’ rather than ‘yes’, I concluded that the existence of the facts alleged in para 12 of the amended statement of claim were not relevant to the validity of the second defendant’s declaration under s 198A(3) of the Migration Act. Those pleaded facts were:

12. The declaration was unlawful and of no effect because, as at 2 October 2001:

12.1 Nauru did not provide access, for persons seeking asylum, to effective measures for assessing their need for protection and, in particular, did not provide unaccompanied minors seeking asylum with an independent mentor or legal or other assistance to assist them with the preparation and processing of their applications for the recognition of their status as refugees;

12.2 Nauru did not provide protection for persons seeking asylum, pending determination of their refugee status, in that:

12.2.1 it did not provide persons seeking asylum with legal or other assistance to enable them to question the legality of their detention in Nauru;

12.2.2 it took no account of the fact that a person seeking asylum was an unaccompanied minor;

12.2.3 it was not a party to the Convention Relating to the Status of Refugees (“the Convention”) or the Optional Protocol to the Convention (“the Protocol”) and could therefore without breaching ?either (sic) the Convention or the Protocol repatriate immediately to his or her country of origin any alien who entered Nauru;

12.2.4 the Statement of Principles did not prohibit the refoulement of asylum seekers by Nauru to a place where they might suffer persecution;

12.3 Nauru did not provide protection to persons who were given refugee status pending their voluntary repatriation to their country of origin or resettlement in another country in that:

12.3.1 it was not a term of the Statement of Principles that if an asylum seeker detained in Nauru was found to be a refugee within the meaning of Article 1A of the Convention, he or she would be released from detention in Nauru, or that he or she would not be subject to refoulement to a country where he or she might face persecution;

12.3.2 Nauru did not provide persons who had been given refugee status with legal or other assistance to enable them to question the legality of their detention in Nauru;

12.3.3 Nauru took no account of the fact that a person who had been given refugee status was an unaccompanied minor;

12.3.4 Nauru was not a party to the Convention or the Protocol and could therefore without breaching either the Convention or the Protocol repatriate at any time to his or her country of origin any alien in Nauru;

12.4 Nauru did not meet relevant human rights standards in purporting to provide protection to persons seeking asylum or persons who had been given refugee status in that:

12.4.1 it was not a party to either the Convention or the Protocol and could therefore at any time without breaching either the Convention or the Protocol repatriate to his or her country of origin any alien in Nauru;

12.4.2 it was not a party to the International Covenant on Civil and Political Rights, the Optional Protocol to the International Covenant on Civil and Political Rights, the Convention on the Elimination of all Forms of Racial Discrimination or the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment;

12.4.3 it was a party to the Convention on the Rights of the Child but, in respect of the detention in Nauru of persons seeking asylum or who had been given refugee status, it took no account of the fact that any of those persons was an unaccompanied minor.

9 Further, in relation to question 9, I answered that the declaration made by the second defendant that Nauru was a declared country was not invalid.

10 Accordingly, I can see no basis for any conclusion other than the fact that the plaintiff’s claim for certiorari to quash the declaration that Nauru is a declared country must be dismissed. I will so order.

GUARDIANSHIP

11 In relation to the claims which depend upon allegations of breach of guardianship duties, I reached the conclusion that s 6 of the Immigration (Guardianship of Children) Act 1946 (Cth) (IGOC Act) did not impose any duties on the second defendant in his capacity as a guardian of a non-citizen child arriving in Australia, the breach of which were enforceable by any cause of action sounding in damages (at [289]-[303]).

12 Once again, I can see no conclusion other than the fact that there being no free standing cause of action based on the breach of the IGOC Act, those parts of the plaintiff’s claim which depend upon such a proposed cause of action must also be dismissed.

13 This extends to those alleged breaches which are claimed to have taken place at Ashmore Reef and those alleged breaches which are claimed to have taken place while the plaintiff was taken from Ashmore Reef to Christmas Island and those alleged en‑route to Nauru.

14 The reasons those claims fell away (as answered in question 14) was because of the answers given to questions 1.1, 1.2 and 3 to the effect that the plaintiff:

(a) did not (for the purposes of s 4AAA(1)(b) of the IGOC Act) enter Australia when entering the coastal sea adjacent to Ashmore Reef;

(b) that the second defendant therefore did not then become the plaintiff’s guardian by reason of s 6 of the IGOC Act; and

(c) that the plaintiff did not leave Australia for the purpose of s 6A of the IGOC Act when he was taken from Ashmore Reef to Christmas Island.

15 Again, in my view, it is impossible for the plaintiff in light of those answers to establish that the alleged acts and omissions constituted any breach of duty made by the second defendant to the plaintiff under the IGOC Act.

16 Relevant also are the answers given to:

(a) question 11.2 (in the negative) which was premised on the acceptance that a guardianship duty that might otherwise have arisen from s 6 of the IGOC Act must be read as being subject to s 198A of the Migration Act (at [242]-[245]); and

(b) in answer to question 10 that s 198A of the Migration Act authorised officers or agents of the first defendant to take the plaintiff from Christmas Island to Nauru (at [233]-[234]).

MISFEASANCE IN PUBLIC OFFICE

17 The claim in damages for misfeasance in public office by the second defendant necessarily depends upon asserted breaches of guardianship duties under the IGOC Act or other unlawful conduct. My conclusion, however, has been that the actions taken were authorised expressly by s 198A of the Migration Act. It follows that any claim for misfeasance must be dismissed.

CLAIM IN NEGLIGENCE

18 It is common ground that some aspects of the asserted breach of a duty of care have not been resolved by the answers to the preliminary questions.

19 The first claim at para 90.1.2 of the amended statement of claim is that in breach of the duty of care the first defendant by its officers and/or servants and/or agents ‘detained the Plaintiff or caused or permitted the Plaintiff to be detained on Christmas Island, as pleaded in paragraph 33 above’. Paragraph 33 essentially describes the dates on which the plaintiff was detained on Christmas Island (between 14 November 2001 and 29 December 2001).

20 The next paragraph falling for consideration is 90.1.3 which is that the defendants failed or neglected to obtain medical treatment for the plaintiff’s arm injury, ‘as pleaded in paragraph 35’ of the amended statement of claim which in turn refers back to para 17 which says that the injury was sustained when the plaintiff resisted attempts by Talib to take him in to custody while he was in Afghanistan and before his escape. I understand the allegation in para 90.1.3 to be a failure while he was on Christmas Island to obtain medical treatment for the plaintiff in respect of that arm injury.

21 Also remaining for determination are the allegations by the plaintiff that the first and second defendants breached a duty of care by reason of matters pleaded in paras 90.1.6-90.1.16 in the amended statement of claim. Those paragraphs provide in essence that the defendants:

90.1.6 failed or neglected to obtain treatment for the arm injury;

90.1.7 refused a request by the Plaintiff for Dr Honey to examine the arm injury;

90.1.8 refused to refer the Plaintiff to the AGMO;

90.1.9 denied offers of the DCD access to the Plaintiff;

90.1.10 failed or neglected to respond to Ms Brazier’s letter dated 25 March 2003 and failed or neglected to release the Plaintiff from detention;

90.1.11 refused to release the Plaintiff from detention and place him in home based accommodation, as recommended by Ms Brazier in her letter dated 18 June 2003;

90.1.12 failed or neglected to have any or any proper regard to Dr Burton’s report dated 27 May 2003;

90.1.13 failed or neglected to accept the recommendation of the DCD, contrary to the terms of the Instruction;

90.1.14 failed or neglected to accept the recommendation of the DCD, as made in Ms Brazier’s letter dated 2 July 2003, contrary to the terms of the Instruction;

90.1.15 failed or neglected to have any or any proper regard to Dr Simon’s report;

90.1.16 failed or neglected to have any or any proper regard to Dr Voon’s report.

22 Also remaining for determination in relation to the alleged breach of a duty of care are the allegation in para 90.2 that the Minister performed the acts and made the omissions pleaded in para 88, to the extent that those matters refer to paras 88.5, 88.6, 88.7 and 88.11-88.26 of the amended statement of claim. Those paragraphs provide as follows:

88.5 by his agents, detained the Plaintiff or caused or permitted the Plaintiff to be detained on Christmas Island…;

88.6 while the Plaintiff was detained on Christmas Island, failed or neglected to issue or serve on the Plaintiff a notice pursuant to section 46A(2) of the Migration Act exempting the Plaintiff from the provisions of section 46A(1) of the Migration Act and thereby permitting the Plaintiff to apply for a protection visa;

88.7 by his agents, failed or neglected to obtain medical treatment for the arm injury;

…

88.11 by his agents, failed or neglected to obtain treatment for the arm injury;

88.12 by his agents, refused a request by the Plaintiff for Dr Honey to examine the arm injury…;

88.13 by his agents, failed or neglected to attend a meeting with the Plaintiff’s solicitors to discuss the better management of the Plaintiff in terms of the Instruction…;

88.14 determined that the Plaintiff should be returned to Nauru, as pleaded in paragraph 68 above, notwithstanding that the Plaintiff had not then undergone the surgery and notwithstanding also that his solicitors had previously told the Defendants’ solicitors that the Plaintiff would not be returned to Nauru without having first undergone the surgery…;

88.15 opposed the Plaintiff’s application to this Honourable Court for an injunction restraining the Second Defendant from removing the Plaintiff from Australia and returning him to Nauru…;

88.16 by his agents, told the Plaintiff that he would be returned to Nauru on 25 December 2003…;

88.17 opposed the Plaintiff’s application to the High Court for an injunction…;

88.18 by his agents, refused to refer the Plaintiff to the AGMO…;

88.19 by his agents, denied officers of the DCD access to the Plaintiff…;

88.20 by his agents, failed or neglected to respond to Ms Brazier’s letter dated 25 March 2003 and failed or neglected to release the Plaintiff from detention…;

88.21 by his agents, refused to release the Plaintiff from detention and place him in home based accommodation, as recommended by Ms Brazier in her letter dated 18 June 2003…;

88.22 by his agents, failed or neglected to have any or any proper regard for Dr Burton’s report dated 27 May 2003, a copy of which Ms Brazier sent by post to Mr Farmer on 18 June 2003…;

88.23 by agents, failed or neglected to accept the recommendation of the DCD, contrary to the terms of the Instruction…;

88.24 by his agents, failed to accept the recommendation of the DCD, as made in Ms Brazier’s letter dated 2 July 2003, contrary to the terms of the Instruction…;

88.25 by his agents, failed or neglected to have any or any proper regard for Dr Simon’s report…;

88.26 by his agents, failed or neglected to have any or any proper regard to Dr Voon’s report…;

23 [88.10] of the pleading asserts that the second defendant in breach of his guardianship duty, by his agents, detained the plaintiff in Nauru (in the manner described in [46] of the pleading).

24 As I understand it the defendants do not dispute that the IGOC Act continued to bind the second defendant until the plaintiff attained 18 years of age. The defendants deny however, that the second defendant breached the Act by permitting the plaintiff to travel to the four locations discussed. I have determined that issue in favour of the defence.

FALSE IMPRISONMENT

25 It is common ground that the plaintiff’s claim against the first and second defendants for false imprisonment from the plaintiff’s departure from Ashmore Reef on 11 November 2001 and his removal from Christmas Island on 28 December 2001 and from the plaintiff’s departure from Nauru on 1 November 2002 until his release from detention in Perth on 25 February 2004 (as pleaded in paras 29, 30, 32, 33, 50, 51, 86 and 92 of the amended statement of claim) remain to be resolved.

CONSPIRACY TO INJURE

26 The plaintiff pleads against the second defendant a conspiracy to injure. The pleading is set out as follows in para 97 and para 98 of amended statement of claim:

97. At a date or dates unknown to the Plaintiff but before 11 December 2001 being the date of the First Memorandum of Understanding pleaded in paragraph 36 above and continuing beyond 9 December 2002 being the dated (sic-date) of the Second Memorandum of Understanding pleaded in paragraph 59 above the Second Defendant agreed with others, including but not limited to the President of Nauru, Rene Harris, the Minister for Defence, Peter Reith, the Minister for Foreign Affairs, Alexander Downer and others not known to the Defendant (sic-Plaintiff) but including officers of the Defendants to remove the Plaintiff and others from Australia with the intention of causing injury and damage to him by:

97.1 depriving him of legal assistance with a view to preventing him from having access to the courts and relevant administrative tribunals of the Commonwealth and the courts of Western Australia and the Northern Territory in order to challenge the lawfulness of his detention on Christmas Island as pleaded in paragraph 33 above and his proposed removal from Australia as pleaded in paragraph 43 above;

97.2 depriving him of qualified independent assistance to assist him in properly preparing his claim for refugee status;

and by doing so caused injury and damage to the Plaintiff.

98. Between 14 November 2001 and 9 November 2002 the Plaintiff was deprived of the opportunity:

98.1 to seek legal advice in relation to his rights thereby losing the chance to challenge in the courts of Australia the Second Defendant’s decision to remove him from Australia as pleaded in paragraph 43 above;

98.2 to have the assistance of a qualified migration agent in properly preparing his claim to refugee status; and

98.3 to have the assistance of his brother, Hussain, in giving evidence supporting his claim to refugee status and to a protection visa.

27 This claim also needs to be determined at trial.

28 The plaintiff, as I perceive his submissions, still seeks to revisit the question of whether or not certain questions should have been answered. The position which now appears to be advanced for the plaintiff is that in light of some of the answers which were given to the preliminary questions, all of the preliminary questions should have been answered ‘inappropriate to answer’.

29 As the defendants observe, this is a substantial expansion of the position advanced by the plaintiff at the hearing on 26 and 27 March 2009 when, for the first time, the plaintiff contended that some of the previously agreed preliminary questions should not be answered (see [65]). I expressly recorded in my reasons (at [66]) that although the plaintiff had changed his position in relation to some of the questions, I still considered that it was appropriate to put them as preliminary questions. Specifically, I noted that the reason for coming to that conclusion was not simply because the plaintiff had already agreed for the matters to be determined as preliminary questions but rather because it appeared to be in accordance with the principles examined in the reasons (from [7] onwards). While the parties’ consent to the process of answering preliminary questions was an important consideration, neither the existence of the consent nor the consent being withdrawn could be solely determinative or whether matters should be tried as preliminary issues.

30 Those questions have been determined and no good reason is shown as to why it is open to revisit them at this stage.

PLAINTIFF’S CONTENTIONS OF MATTERS OUTSTANDING

31 The plaintiff has sought to reactivate arguments on the act of state doctrine, noting that submissions had not been made to the Court in relation to the reasons of Tamberlin J in Hicks v Ruddock (2007) 156 FCR 574. Broadly, the position of the plaintiff has been that the act of state doctrine has no application in cases where serious abuses of human rights are concerned. Reliance was placed on an argument that Tamberlin J upheld (at [34]) that neither the act of state doctrine nor the principle of non-justiciability justified summary judgment in those proceedings.

32 I have already made clear that the resolution of the preliminary issues was not only agreed (albeit that the agreement was withdrawn at a late stage) but appropriate. The resolution is not interlocutory. In the sense that those matters have been determined, they are finally determined subject only to appeal. Further, the decision of Tamberlin J in Hicks v Ruddock was argued on the preliminary question debate. I accepted the arguments of the defendants (at paras 164-167 of their written submissions of 20 March 2009) as to the reasons why the current case was distinguishable from that in Hicks v Ruddock.

33 The plaintiff also seeks to re-agitate an argument based on the decision of Habib v Commonwealth of Australia (No 2) (2009) 175 FCR 350. The hearing on the preliminary questions took place on 26 and 27 March 2009. Judgment in Habib (No 2) had been reserved on 10 October 2008 and judgment was delivered by Perram J on 13 March 2009 shortly before the present hearing. In the case of Habib (No 2), the complainant was an Australian citizen, held in Pakistan, Egypt and Guantanamo Bay as an alleged unlawful combatant. He alleged that he was illegally detained and tortured by the overseas authorities and that the Commonwealth knew of the matter but did little or nothing to stop it from taking place. A claim was based amongst others on the tort of harassment resulting in psychological shock; on breach of fiduciary duty on the basis that the Commonwealth should have exercised its constitutional powers to conduct foreign relations in his interests; on a breach of duty of assistance; and on tort of misfeasance in public office. Unlike the present case, the Commonwealth there applied for summary judgment pursuant to s 31A of the Federal Court of Australia Act 1976 (Cth) (FCA) on the basis that the proceedings had no reasonable prospects of success. The Commonwealth also sought to strike out various parts of the pleading pursuant to O 11 r 16 of the Federal Court Rules (FCR). Perram J struck out the misfeasance claim on the basis that the pleading was defective. However, leave to re-plea was granted on the basis that such a claim could be sustained if it could be said that the provision of intelligence for use in the torture of Mr Habib was contrary to Commonwealth law pursuant to the Third and Fourth Geneva Conventions on the Treatment of Prisoners of War and the Protection of Civilians in Time of War. The plaintiff wished to contend that in such a context the act of state doctrine was not necessarily applied to prevent the Court from examining the rights and wrongs of the acts of the foreign State (see [81]).

34 Although the pleading was struck out with liberty to re-plead, with the apparent agreement of Mr Habib, the Commonwealth pursued the act of state argument by way of question reserved under s 25(6) FCA and O 50 r 1 FCR.

35 In the Full Court in Habib v Commonwealth of Australia (2010) 113 ALD 469, Jagot J held (at [134]), (Black CJ agreeing at [1]-[13]) that those cases, at least on which the Commonwealth relied, did not support a conclusion that the act of state doctrine prevented an Australian court from scrutinising the alleged acts of Australian officials overseas in relation to breaches of universal norms of an international law to which effect had been given by Australian laws having extraterritorial effect.

36 Judgment was delivered after the preliminary issues were determined in this proceeding. The plaintiff contends that there is no relevant factual distinction between the case of Mr Habib and the case of the plaintiff.

37 If the judgment of the Full Court is binding, the plaintiff contends, it follows, therefore, that the answers given by this Court to questions in NM-4.1 and therefore, NM-4.2 and NM-4.3 must be in error. On that basis, the plaintiff contends that the issues related to the period of the plaintiff’s stay in Nauru and whether he was there falsely imprisoned remain for determination and should be determined at trial.

38 The defendants contend that the Full Court’s judgment in Habib 113 ALD 469 addressed a distinct situation, namely, where an applicant sought to impugn the actions of Commonwealth officers on the ground that those officers had:

(a) acted beyond the bounds of their authority under Commonwealth law (Perram J at [24]);

(b) breached Australian laws having extraterritorial effect (Jagot J at [114] with whom Black CJ agreed); and

(c) aided, abetted and counselled foreign officials to inflict torture upon an Australian citizen in circumstances where the acts of those foreign officials, if proved as alleged, would themselves be unlawful under Australian laws having extraterritorial effect (Jagot J at [118] with whom Black CJ agreed).

39 None of those allegations has been raised by the plaintiff in the present case. The pleading of the plaintiff is that his detention by Nauru included a false imprisonment on the part of the defendants but none of the allegations of the kind raised in Habib (or in the subsequent case also decided after reasons delivered on the preliminary questions: Binyam Mohamed v Secretary of State for Foreign and Commonwealth Affairs [2010] EWCA Civ 65). None of the allegations raised is of a human rights abuse, for example, torture such as the allegation raised in Habib and Binyam Mohamed.

40 Revisiting the rulings made, if it was abundantly clear that the authority on which the plaintiff has relied was directly in point and dictated that the wrong law had been applied, would be one thing. To re-agitate the issues in circumstances where such authority is not in point is another. It is a course which will not be pursued.

41 These subsequent decisions would not require that different answers be given to the preliminary questions. It is not appropriate that those questions which have already been answered should be revisited.

42 The plaintiff also submits that it remains to be determined whether the actions of the APS officers during the plaintiff’s detention in Nauru between 29 December 2001 and 1 November 2002 was authorised pursuant to the APS Act. This is claimed notwithstanding a positive answer to question 12, which was in the following terms:

12. Was the deployment of Australian Protective Services Officers in Nauru authorised under the provisions of the Australian Protective Service Act 1987?

43 The conduct pleaded at [46] of the pleading describes the activities of the APS officers acting as guards in Nauru, sometimes in conjunction with Nauru police officers, sometimes independently.

44 Although [46] is cast in terms of breach of guardianship duty, I held in Sadiqi (No 2) that there was no free standing cause of action in damages for such a breach. Accordingly to the extent that [46] is alive in the case, I take the plaintiff to be contending that the actual facts in [46] as relied on to support the negligence plea in [90.2] are yet to be resolved.

45 This submission can only be based on an argument that the activities in [46], to the extent they were carried out by the APS were performed on behalf of the second defendant Minister. The first question is whether this has been precluded by the act of state doctrine conclusion. Shortly put, in Sadiqi (No 2) I found the deployment of APS officers to serve overseas on certain terms and conditions was lawful. To the extent the APS officers were acting at the direction and under the control of Nauru there is no scope for an action in negligence against the second defendant.

46 The question is whether the actions of the APS officers pleaded in [46] are capable of being ‘the acts … and … omissions’ of the second defendant as asserted in [90.2] of the pleading.

47 It may be difficult to see how the actions at [46] are actions taken in breach of a duty of care. However, the only question currently being addressed is what matters remain in the case and what have been dismissed. Despite the challenges to which I have alluded, it does not appear that the questions asked and answered in Sadiqi (No 2) have expressly eliminated the determination of this issue. Accordingly I accept the plaintiff’s submission that the issue in [90.2] in so far as it incorporates [88.10] has not yet been determined and should be added to the matters to be determined on the resumption of the trial.

COSTS

48 In relation to costs, the defendants seek an order that costs follow the event in relation to such of the plaintiff’s claims as are dismissed. They argue that there is no reason why the Court in exercising its discretion to award costs should depart from the normal rule that costs follow the event. In relation to the specific motion concerning the preliminary questions, the defendants seek 75 per cent of their costs on the basis that, with the exception of one point in principal, the conclusions were determined in favour of the defendants. The exception was that I found that there was not sufficient evidence to enable the Court to determine whether any ‘officers’ (as defined in s 5 of the Migration Act) actually subjectively held the suspicions identified in the various subsections of s 189 of the Migration Act. The result of that was that it was not possible to make findings that the detention of the plaintiff from the time of his departure from Ashmore Reef until the time of his departure from Christmas Island or during the time that he was held in immigration detention in Perth following his return from Nauru were lawful. The consequence of that was that questions NM-1 to NM-3 inclusive could not be answered (at [142]-[143] and [148]). I did observe, however, that if the relevant suspicions were in fact held, on the evidence there would be no reason to conclude on the agreed facts and on the evidence to the extent it was available, that such a suspicion was unreasonable. The defendants contend that a 25 per cent discount on their costs claim is generous to the plaintiff in the circumstances. I accept these submissions.

49 I consider that the only matters which remain open for determination at trial are those to which I have referred. The question is whether a costs order should be made at this point of the adjourned trial.

50 Were I to make a costs order at this stage of the adjourned trial, it would be in accordance with the order sought by the defendants. I am deliberately recording that position at this stage. However in my view it is premature to make a costs order at this stage of the adjourned trial. Although the preliminary questions have been dealt with as a quite discrete aspect of the trial, there remains the possibility that the plaintiff will succeed on some aspect of his claim even though much of it has been dismissed at this point. If he does ultimately succeed on some point and if he is awarded costs, it would be more appropriate on completion of the trial as a whole that the determination of the appropriate allocation of costs be addressed at that point.

51 Orders consequential upon the conclusions expressed in these reasons would ordinarily be subject to appeal within the usual time limits under the Federal Court Rules. While I would entertain any argument to the contrary advanced by the parties, it seems to me the time to appeal from any of the orders expressed consequent upon these reasons should not run until there has been a complete determination of the outstanding issues raised by the plaintiff. Accordingly I propose to order that time will not run for the purposes of appeal, subject to any further order, until final judgment following trial.

52 Accordingly, as a result of the determination of the preliminary questions, I will make the following orders:

1. The plaintiff’s claims for relief:

1.1 against the second defendant for the issue of a writ of certiorari quashing the decision made by the second defendant on 2 October 2001 to make a declaration in respect of the Republic of Nauru (Nauru) under s 198A(3) of the Migration Act 1958 (Cth) by reason of the allegations pleaded in paragraph 12 of the plaintiff’s further re-amended statement of claim dated 2 December 2009 (the amended statement of claim);

1.2 against the second defendant for damages for breach of guardianship duty as pleaded in paragraphs 87, 88 and 91 of the amended statement of claim;

1.5 against the second defendant for damages for misfeasance in public office by the second defendant as pleaded in paragraphs 39, 40, 41, 42 and 94 of the amended statement of claim;

be dismissed.

2. The matter be re-listed for directions as to trial of the remaining issues in dispute, namely, the plaintiff’s claims for damages:

2.3 against the second defendant for conspiracy to injure (as pleaded in paragraphs 97 and 98 of the amended statement of claim).

3. Costs of the trial to date are reserved.

4. Subject to further order, time within which to appeal any part of these orders will not commence to run until final judgment following trial.

I certify that the preceding fifty-two (52) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice McKerracher.

Associate:

Dated: 11 June 2010

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