FEDERAL COURT OF AUSTRALIA

Fernando v Commonwealth of Australia [2010] FCA 753

THE COURT ORDERS THAT:

1.                  The first and second respondents pay the applicant damages in the sum of $3,000.00.

2.                  The proceeding is otherwise adjourned to a date to be fixed.

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 Federal Law Search on the Court’s website.

REASONS FOR JUDGMENT

1                     The applicant, Mr Fernando, is a citizen of Sri Lanka.  He arrived in Australia in 1989.  In 1995, Mr Fernando was granted a permanent residency visa.  In July 1998, he was convicted of sexual assault and sentenced to eight years imprisonment.  By reason of his criminal conviction for a serious crime, Mr Fernando was at risk of having his permanent residency visa cancelled on character grounds under s 501(2) of the Migration Act 1958 (Cth), and deported.

2                     In September 2003, an officer of the Department of Immigration and Multicultural and Indigenous Affairs (the department) learned that Mr Fernando was due to be released from Acacia prison on parole in Perth on 5 October 2003.  Departmental officers then embarked on a process aimed at having the Minister for Immigration and Multicultural and Indigenous Affairs (the Minister) make a decision whether to cancel Mr Fernando’s permanent residency visa under s 501(2), by no later than 3 October 2003.  This was because, if his visa was cancelled on 3 October 2003, the departmental officers would be able to have Mr Fernando arrested and taken into immigration detention as an unlawful non-citizen, immediately upon his release on parole from Acacia prison, in anticipation of his imminent deportation.

3                     As part of that process, the departmental officers served on Mr Fernando a notice dated 17 September 2003, calling on him to provide submissions within 14 days as to why the Minister should not cancel his visa.  It is a requirement for the lawful exercise of the power granted to the Minister under s 501(2) of the Migration Act to cancel a visa on character grounds, that the visa holder has an opportunity to make submissions as to why the Minister should not cancel the visa.

4                     Mr Fernando was in prison at the time he was invited to make the submissions.  Mr Fernando posted the submissions within the 14 day period referred to in the notice, but the submissions had not arrived in Canberra by 3 October 2003.  Notwithstanding that the departmental officers had not received Mr Fernando’s submissions, on 3 October 2003, they forwarded to the second respondent a minute and issues paper they had prepared, to facilitate the second respondent making the visa cancellation decision on that day, if he so chose.  On 3 October 2003, the second respondent was the Acting Minister for Immigration and Multicultural and Indigenous Affairs – the Minister, Mr Phillip Ruddock, being out of Australia at that time.  The Acting Minister, using the minute and issues paper provided by the departmental officers, cancelled Mr Fernando’s visa on 3 October 2003, without considering Mr Fernando’s submissions, which were still in transit.  On his release on parole, on 5 October 2003, Mr Fernando was immediately taken into immigration detention, where he remained until 18 January 2007.

5                     By an application made to this Court in October 2003, Mr Fernando challenged the lawfulness of the Acting Minister’s decision to cancel his permanent residency visa on the grounds that he had been denied procedural fairness; and sought orders setting aside the decision to cancel his visa.  On 18 January 2007, the respondents accepted that the decision of the Acting Minister on 3 October 2003 to cancel Mr Fernando’s visa, had been unlawfully made and they consented to the Court making orders setting aside the cancellation of Mr Fernando’s visa.  After spending three years, three months and 13 days in immigration detention, consequent upon the making of the Acting Minister’s unlawful decision, Mr Fernando was released.

6                     By this application, Mr Fernando, by his tutor, claims damages from the first respondent, the Commonwealth of Australia, and the Acting Minister, in respect of the loss and damage suffered by reason of his immigration detention.  Mr Fernando relies upon four causes of action, namely, false imprisonment, negligence, breach of statutory duty and misfeasance in public office.

background

7                     Mr Fernando arrived in Australia on 2 February 1989 on a student visa.  Mr Fernando undertook studies at Edwards Business College, Technical and Further Education College and then at Edith Cowan University, where he studied for a Bachelor of Science degree.  In 1995, whilst he was still studying for that degree, Mr Fernando was granted a permanent residency visa which enabled him to remain and study in Australia.

8                     In September 1996, Mr Fernando engaged in sexual relations at the home of a 44 year old woman, whom he had met on a train earlier that evening.  Sometime later Mr Fernando learned that the woman had complained to the police.  Mr Fernando learned this from his friend, and employer, who had seen a report on the television programme, “Crime Stoppers”.  Mr Fernando then went to the police.  Mr Fernando contended that the sexual relations had been with the complainant’s consent.  Mr Fernando was charged with sexual assault charges on 15 October 1996.  Mr Fernando was released on home detention in October 1996 until his trial.

9                     During the period 27-31 July 1998, Mr Fernando was tried on two counts of indecent assault and four counts of sexual penetration without the complainant’s consent.  Mr Fernando was represented at the commencement of the trial by legal counsel.  However, at the end of the second day of the trial whilst the prosecution case was still being presented, Mr Fernando terminated his counsel’s retainer and, thereafter, defended himself.  Mr Fernando’s defence was that the sexual relations had been consensual.

10                  On 31 July 1998, Mr Fernando was, by a majority jury verdict, convicted of three counts of sexual penetration without consent and acquitted of one count of sexual penetration without consent and the two counts of indecent assault.  On 25 September 1998, Mr Fernando, who had no previous convictions, was sentenced to eight years imprisonment with eligibility for parole.

11                  I have taken the account of the facts in [8]-[10] above, largely from the judgment of the Western Australian Court of Criminal Appeal in Fernando v The Queen [2000] WASCA 289.

12                  On or about 7 September 2001, Mr Fernando was served in prison with a notice of intention to consider cancellation of his permanent residency visa on character grounds.  The notice was issued by an officer of the department, and invited Mr Fernando to submit by 25 September 2001, submissions to the department in Western Australia stating reasons why his visa should not be cancelled.

13                  On 23 and 25 September 2001, Mr Fernando sent written submissions directly to the Minister in Canberra rather than to the department in Perth, giving his reasons why he believed that his visa should not be cancelled.

14                  On 29 November 2001, the Minister, Mr Phillip Ruddock, made a decision to cancel Mr Fernando’s visa on character grounds under s 501(2) of the Migration Act.  Mr Fernando received a notice of cancellation of his visa shortly after that date.  Mr Fernando was, of course, at that time in Acacia prison.

15                  On 10 January 2002, by application WAD 306 of 2002, Mr Fernando applied to this Court for judicial review of the Minister’s decision made on 29 November 2001, to cancel his visa.

16                  On 16 September 2003, Carr J made an order setting aside the cancellation of the visa (Fernando v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 975).

17                  The basis upon which Carr J set aside the Minister’s decision was that the Minister had not afforded Mr Fernando procedural fairness.  The Court found that the Minister had, in making his decision, taken into account information in certain documents, which was adverse to Mr Fernando and Mr Fernando had not been given an opportunity to comment on that information.  These documents had been annexed as “Annexure L” to the issues paper which had been provided to the Minister by departmental officers to assist him in making his decision.  The documents were referred to in Carr J’s judgment as “Annexure L”.

18                  The Minister had contended before Carr J that the information in the documents was confidential and it was not necessary for the Minister to disclose those documents to Mr Fernando.  However, the Court held that a failure by the Minister to afford Mr Fernando an opportunity to comment on a summary of the adverse material, was a denial of procedural fairness.

19                  In September 2003, Ms Rebecca Chow was employed as an officer in the Section 501 Cancellation Team in the Compliance Section of the Perth office of the department.  Ms Chow’s duties included preparing submissions for the Minister to consider in respect of the cancellation of visas under s 501 of the Migration Act.  Ms Chow gave evidence and was cross-examined.

20                  On 16 September 2003, Ms Chow received an email from her supervisor, Mr Colin Drysdale.  This email forwarded two emails from Mr Vincent Giuca, an officer in the Canberra office of the department, advising of Carr J’s decision quashing Minister Ruddock’s decision to cancel Mr Fernando’s visa, and asking that a new visa cancellation process be commenced as soon as possible.  One of the emails from Mr Giuca stated:

I understand Fernando is coming out of prison on the 5^th of October.  In a notice to cancell [sic] we need to give him 14 days to respond.  If one of your officers could hand deliver a notice of intention to cancel tomorrow, and gave him 14 days to respond, an assessment and decision could be finalised before he is released.

21                  On 17 September 2003, Ms Chow drafted a notice of intention to consider cancelling Mr Fernando’s permanent residency visa.  The notice invited Mr Fernando to make submissions to the Minister in respect of any considerations which he felt “the Minister ought to be aware of and take into account” in making his decision whether to cancel his visa.

22                  This notice stated that Mr Fernando should provide his submissions to the Department of Immigration and Multicultural and Indigenous Affairs in Perth by the close of business on 1 October 2003.

23                  On either 17 September or 18 September 2003, an official from the department visited Mr Fernando in Acacia prison and handed to him the notice of intention to consider cancellation of his visa, drafted by Ms Chow.  There is some uncertainty as to whether the notice was handed to Mr Fernando on the 17 September or 18 September 2003, but, in my view, this issue is immaterial to the outcome of this case.  However, in the event that this fact subsequently proves to be important, I find that it was served on 18 September 2003.  There were two documents in evidence, each purporting to bear the signature of Mr Fernando acknowledging service of the document, one bearing the date, 17 September 2003, and the other bearing the date, 18 September 2003.  I find that the document was served on 18 September 2003, because the latter document appears to be a copy of a facsimile sent from Acacia prison dated 22 September 2003, whereas the former document has no indication of its provenance and the departmental officer, who served the notice on Mr Fernando, was not called to give evidence.  Mr Fernando could not remember whether the document was served on him on 17 September or 18 September 2003.

24                  About a week prior to 1 October 2003, Mr Fernando telephoned the Acting Minister’s office in Canberra and spoke to an official, Mr Charles Wann.  Mr Fernando asked for an extension to the 1 October 2003 deadline for providing the submissions.  Mr Wann told him that he did not have authority to give such an extension but that he would pass his request on to the department.

25                  On 25 September 2003, Ms Chow sent the following email to Mr Vincent Giuca:

I refer to your direction of 16 September 2003 that a decision be finalised before Mr Fernando’s release on 5 October 2003 (Sunday).

The Notice was hand delivered to Mr Fernando on 17 September 2003.  He has until 1 October 2003 to respond.

I will complete the submission, and hopefully – have it cleared by this office at the end of 2 October (Thursday).  I will send you an electronic copy of the submission, including the annexures which will give the Minister Friday (3 October) to make his decision.

I understand the Minister is overseas.  Will this affect if a decision can be made before 5 October?  Or is there some other Minister or person that will be making the decision on his behalf?

Please liaise with Kevin O’Connor (Acting Manager) regarding the receipt of the Minister’s decision in the event that the decision is not finalised before close of this office on 3 October.

26                  Mr Kevin Pullen, also an officer employed in the Canberra office of the department, responded to Ms Chow’s email saying that Mr Giuca was away and that the Minister would be overseas on 3 October 2003.

27                  On 26 September 2003, Mr Pullen sent an email to Ms Chow and Mr Kevin O’Connor which stated as follows:

I have discussed the Fernando matter with Avinesh Chan in the Minister’s office and he supports your proposal that this matter be put for Mr Hardgrave in his capacity as Acting Minister.  Avinesh will alert Minister Hardgraves [sic] office that the submission is likely to be ready for his signature next Friday.  You will therefore need to get the submission and all associated attachments to us by Friday morning.  We will then arrange to personally deliver to Minister Hardgrave’s office.

28                  At 3:12 pm on 29 September 2003, Mr Avinesh Chan sent an email to Ms Chow.  The email said:

I have talked to Minister Hardgrave’s office re the Cancellation sub that will be coming their way.

Is it possible for the submission to be ready for [indistinguishable].  I note that Mr Fernando would be due for release on the weekend - if he is to be taken into immigration detention straight away, the sub would need to be signed and returned to Perth before the weekend?

Also note that Minister Hardgrave is in Brisbane, so his office would need to send it there for signature – and that his acting period will end on the weekend.  Further complication being that there will be a new Minister for Immigration on Tuesday.  Best if the sub was signed before Friday to ensure that everything goes smoothly.

29                  On 29 September 2003, having received no response from the department in respect of his telephonic request for an extension of time, Mr Fernando handed part of his submissions to the Acacia prison authorities in Perth to be posted to the Minister’s office in Canberra.  The submissions were voluminous.  They were posted on that day.

30                  On 30 September 2003 at 10:00 am, Ms Chow sent an email to Ms Vicki Tumini at the department in Canberra.  The subject of the email was:  “URGENT ADVICE NEEDED – Lloyd FERNANDO”.  It was in the following terms:

I refer to our discussion this morning.

·                      On 31 July 1998 Mr Fernando was sentenced to a total of 8 years imprisonment for 3 counts of sexual penetration without consent.

·                      The Minister cancelled Mr Fernando’s visa under s 501 on 29 November 2001.

·                      On 10 January 2002, after receiving the Notice of Cancellation and a copy of the decision record, Mr Fernando sent to the department comments regarding the cancellation decision.

·                      On 16 September 2003 the Federal Court quashed the Minister’s decision on the basis that non-disclosable information was put to the Minister to which Mr Fernando was not given the opportunity to comment on the substance of the non-disclosable information.

·                      Due [to] the serious nature of his crimes, the department has decided to re‑submit Mr Fernando’s case to the Minister for a fresh decision, without the non-disclosable information.

Please note that this is a matter of urgency.  Mr Fernando is being released on 5 October 2003 (this Sunday).  We hand delivered a new NOICC on 17 September 2003 and he has until 1 October (Wednesday) to respond.  I need to have the submission completed by Thursday morning.

As part of his letter of 10 January 2002, Mr Fernando submitted a copy of the decision record with his comments embedded throughout.  Problem:  the decision record refers to the non-disclosable information which we want to leave out of the new submission.  You were of the opinion that his comments though not in direct response to the new Notice would need to be put to the Minister.  You also suggested that the references to the non-disclosable information be blacked out.  As an alternative, my manager suggested that a note be attached to the submission stating that the non-disclosable information referred to the in original decision record has been excluded for Minister’s consideration for the current decision.

I am faxing to you Mr Fernando’s response of 10 January 2002 for your advice as to how I can still include the comments embedded in the decision record but at the same time, exclude the references to the non-disclosable information.

I appreciate your assistance in this matter.  Thanks.

31                  On 30 September 2003, Mr Fernando sent a facsimile to the Perth office of the department advising that the submissions in response to the notice of intention to cancel his visa, had been posted to the Minister’s office in Canberra for privacy reasons.  Mr Fernando also referred to the fact that he had received no response to his request for an extension of time.  Later that day, an officer from the Perth office of the department, Mr Richard Keane, telephoned Mr Fernando regarding the facsimile.

32                  At 1:38 pm on 30 September 2003, Ms Chow sent another email to Ms Tumini and Ms Basic, with a copy to Mr O’Connor and Mr Drysdale.  This email stated:

I require some further advice regarding Mr Fernando.

We have just received a response from Mr Fernando regarding the Notice of 17 September 2003 (see attachment).  The Notice directed him to submit comments by 1 October to the Perth office.  However, he states that he has sent his submission to [sic] directly to Minister Hardgrave.  Clearly, we will not be receiving those comments in the Perth office tomorrow.  Are we bound to consider those comments?

Also note that his submission is apparently, 256 pages long.  In light of the strict time frame we have set for an assessment and finalised decision - and the volume of Mr Fernando’s response, Kevin O’Connor is concerned as to whether the Minister will be seen to have properly considered all of his comments.

Vicki please let me know if you did not receive the fax of Mr Fernando’s response of 10 January 2003.

33                  Later that day at 4:01 pm, Ms Chow sent an email to Ms Tumini.  The email was also addressed to Mr Gerrard and copied to Mr O’Connor, Ms Basic and Mr Chand.  The email referred to Ms Chow’s earlier email request for advice and then stated:

In a telephone conversation Mr Fernando told our office that the submission sent to Minister Hardgrave was a “work in progress”, that it is substantially the same as those documents filed in the Federal Court but that he had made some amendments.  He told an officer that due to privacy concerns his submission had been referred to the Minister personally and would not release “Volume 4” to Perth DIMIA officers for collection by 1 October 2003.

I understand that Minister Hardgrave’s office has not received a copy of Mr Fernando’s original submission – only a fax that indicated that he had sent the submission contained in 2 envelopes today.

34                  Also on 30 September 2003, Ms Chow received an email from Ms Suzanne Tatam, a departmental officer in Canberra advising that Mr Niall Stoddart, another departmental officer, would prepare the submission to be forwarded to the Acting Minister to facilitate the making of the cancellation decision.  Neither Ms Tatam nor Mr Stoddart was called as a witness in the hearing before this Court.

35                  The email was also addressed to Mr Charles Wann and included the following statement:

Charles Wann from Mr Hargraves [sic] office has advised that:  Amanda Lynch is travelling up Thurs afternoon, so the submission will either have to get to this office by then, or go up by bag on Friday.  Amanda will need to be briefed beforehand about the submission, as well as what the Minsiter [sic] needs to do in terms of signing then faxing the decision record to Perth on the Saturday.  I’m assuming in all this that Minister Hardgrave is acting Minister Ruddock up to and including Saturday.

Charles:  I have received yr fax.  Would you (or Avinesh) be able to confirm the acting Minister’s arrangements pls?  (Original emphasis.)

36                  On 2 October 2003, Ms Chow and Mr Allen Williams, also an officer from the department in Perth, visited Mr Fernando in the Acacia prison.

37                  Mr Fernando advised the two officers that he had not sent his written submissions to the Perth office of the department for reasons of confidentiality.  He said that his submissions consisted of four volumes and that the submissions were more extensive and more complex than the material filed in his application before Carr J.  He also said that he could not give them further copies because the Acacia prison copying facilities were not available.  The departmental officers told him that the Minister had not yet received the submissions.

38                  On 2 October 2003, Mr Fernando filed in the Court, by facsimile from Acacia prison, application WAD 207 of 2003.  The application appears to have been faxed from Acacia prison at 13:45 on 2 October 2003.  The application sought to review the decision and conduct of the Visa Cancellation Unit of the Perth branch of the department.

39                  A facsimile transmission dated 3 October 2003, from the Western Australian District Registry of this Court sent to the department in Canberra, advised that Mr Fernando had filed application for review WAD 207 of 2003 and that it was listed for a directions hearing at 10:30 am on 24 October 2003.  The facsimile enclosed a copy of Mr Fernando’s application for review.

40                  By 3 October 2003, the departmental officers in Canberra had prepared a minute and an issues paper to facilitate the making of the decision by the Acting Minister on whether to cancel Mr Fernando’s visa.

41                  The minute, which had been prepared by the departmental officers, was signed by Ms Yole Daniels, the Assistant Secretary, Compliance and Analysis Branch of the department and forwarded to the Acting Minister on 3 October 2003.  Accompanying the minute was an issues paper which had also been prepared by the departmental officers.  The issues paper included a section headed:  “Statement of Reasons”, which anticipated the Acting Minister making a decision to cancel Mr Fernando’s visa.

42                  Paragraph 9 of the minute stated that the Federal Court had on 16 September 2003, “quashed” the Minister’s previous decision to cancel Mr Fernando’s visa on the basis that Mr Fernando had been denied procedural fairness.  The minute went on to say that certain non-diclosable information had been provided to Minister Ruddock before he decided to cancel Mr Fernando’s visa and Mr Fernando was not provided with that information and Mr Fernando had not been given an opportunity to comment upon the substance of it.

43                  Paragraph 10 of the minute stated:

The department requests that you consider whether to cancel Mr Fernando’s visa under s 501(2).  However, the non-disclosable information, previously put to Mr Ruddock, will not be put to you.

44                  The minute then went on to state:

ISSUES

11.               Attached are issues for your consideration regarding the possible cancellation of Mr Fernando’s visa under section 501(2) of the Act.

12.               Your decision must be based only on the information provided to you.  You must disregard the fact that certain non-disclosable information was considered in relation to the previous cancellation decision that was quashed.

45                  The accompanying issues paper was headed:

Issues for consideration of possible cancellation of visa under s 501(2) of the Migration Act 1958.

46                  The purpose of the issues paper is described as follows:

1.                  To seek your decisions on:

·         Whether Mr FERNANDO passes the character test in s 501(6) of the Migration Act; and

·         If not, whether to cancel his visa pursuant to s 501(2) of the Migration Act.

2.                  Should you choose to make a cancellation decision the draft statement of reasons at part E should set out correctly your reasons for doing so.  If it fails to do this a revised statement of reasons that includes your required amendments will be prepared.

47                  The issues paper stated that Mr Fernando was currently held in custody at Acacia prison and that Mr Fernando was due to be released from prison on 5 October 2003.  The issues paper also stated that Mr Fernando had been served with a notice inviting him to submit in writing any comments which he believed to be relevant to the consideration of the question of whether his visa should be cancelled.  The issues paper went on to say that Mr Fernando was given until 1 October 2003 to respond to the notice and that Mr Fernando had sent his submissions directly to the Minister’s office in Canberra, and that the submissions had not yet been received.  A copy of the notice of 17 September 2003 was annexed to the issues paper.  The issues paper also stated that Mr Fernando had advised two departmental officers who had visited him in Acacia prison on 2 October 2003, that the submissions were more extensive than the information already before the department, and that he had refused to give further copies of the submissions to the officers.

48                  On 3 October 2003, the Acting Minister, made the decision to cancel Mr Fernando’s permanent residency visa.  The decision was made without reference to the content of the submissions which had been posted from Acacia prison on 29 September 2003.  As it transpired, Mr Fernando’s submissions arrived at the Minister’s Canberra office on 7 October 2003 (further re-amended defence, para 10).

49                  In the afternoon of 3 December 2003, Ms Chow received a facsimile from the Acting Minister’s office.  The header of the facsimile transmission recorded that the transmission commenced at 17:23 and finished at 17:26.  The header also recorded that the transmission comprised 41 pages.  Among the documents comprising the facsimile transmission were the minute, the issues paper (which included Part E entitled “Statement of Reasons”) which had been prepared by the departmental officers and forwarded to the Acting Minister to facilitate the making of the decision whether to cancel Mr Fernando’s visa.  The facsimile transmission disclosed that in deciding to cancel the visa, the Acting Minister had adopted, without amendment, the statement of reasons for decision prepared by the departmental officers.

50                  After receiving the facsimile transmission, Ms Chow then prepared a letter dated 3 October 2003, advising Mr Fernando that his visa had been cancelled.  This letter was served on Mr Fernando in Acacia prison on 4 October 2003.

51                  Ms Chow said that she did not recall informing anybody in the Removals Team in the Compliance Section of the Perth office of the department that a decision had been made to cancel Mr Fernando’s visa, but that it was her standard practice to do so in October 2003.

52                  On 3 October 2003, Ms Loralie Lockhart was a removal officer in the Removals Team in the Compliance Section of the Perth office of the department.  Ms Lockhart gave evidence and was cross-examined.  There was also in evidence documents dated 3 October 2003, bearing Ms Lockhart’s signature.

53                  One document signed by Ms Lockhart and dated 3 October 2003, was a document headed “Transfer of Custody”, which was addressed to the superintendent of Acacia prison.  The document read:

You currently hold [Mr Fernando] (the detainee) in lawful immigration detention under the Act.

I hereby authorise you to transfer custody of the detainee to The Officer in Charge, Australasian Correction Management (ACM), who is an officer for the purposes of the Act, on the morning of Sunday 5^th October 2003, at 1100 hours.  (Original emphasis.)

54                  The document bears a mark indicating that it was faxed at 4:35 pm to the superintendent of Acacia prison.  The face of the document also shows that it was copied to “Aaron Sun – ACM”.

55                  A second document signed by Ms Lockhart and dated 3 October 2003, is headed “Request for Officer to Hold in Immigration Detention”.  It was addressed to Mr Aaron Sun and also bears a mark indicating that it was sent by facsimile at 4:35 pm.  The document is a standard form document.

56                  The document first required the person completing the document to insert the name of the person who was said to be in immigration detention.  Ms Lockhart inserted Mr Fernando’s name.

57                  The document then called for the person completing the document to tick one of three alternative boxes to indicate the status of the person said to be in immigration detention.  The three alternatives were:  unlawful non-citizen, non-citizen whose visa is liable for cancellation or deportee.  Ms Lockhart did not complete any of the three alternative boxes for which the form provided, but highlighted the words:  “an unlawful non-citizen: or a deportee”.

58                  The document then went on to state:

Section 5 of the Act specifies that you are an officer for the purposes of the Act and you are, therefore, authorised to lawfully hold him in immigration detention.  I hereby request that you hold him in immigration detention.  (Original emphasis.)

59                  There is also a third document dated 3 October 2003 and signed by Ms Lockhart and bearing a mark stating that it was faxed at 4:35 pm.  This document is headed “DIMA Request for Detention Services”, and is addressed to Mr Aaron Sun - on this occasion spelt “Araon Sun”, “Organisation:  ACM”, “Location:  Perth IDC”.  The document refers to Mr Fernando under the heading “Detainee Details”.  These words then follow:

In relation to the detainee(s) above, I am requesting you, or another employee of your organisation who is an officer under the Migration Act 1958 to:

60                  The document then made provision for the person completing the document to identify which service was required by ticking a box.  The service which was identified was, “Escort detainee to…Perth Immigration Detention Centre from Acacia Prison”.  The other potential services which were not identified by Ms Lockhart, included “hold detainee”, “release detainee” and “transfer custody of the detainee”.  There is also the heading, “Other Services” on the document.  The following words have been inserted by Ms Lockhart under that heading:

Please pick up prisoner from Acacia Prison at 1100 hours on 5/10/03 and take to Perth Immigration Detention Centre.

61                  On 5 October 2003, Mr Fernando was released from Acacia prison on parole.  However, on his release, he was immediately taken into immigration detention by two employees of Australasian Correctional Management (ACM) and driven to the Perth Immigration Detention Centre at the Perth Airport.

62                  On the day after he was taken into detention at the Perth Immigration Detention Centre, two departmental officers came to visit Mr Fernando at the Immigration Detention Centre to interview him.  The departmental officers told Mr Fernando that as he had no outstanding matters before the Court he would be removed from Australia within a few days.  Mr Fernando advised the officers that he had an application pending in this Court which had been filed the previous week.  Mr Fernando advised them that he had commenced a proceeding challenging the cancellation of his visa in this Court.  I will deal further with this event later in these reasons.

63                  Mr Fernando remained in the Perth Immigration Detention Centre until 27 January 2005 when, he was transferred to the Baxter Immigration Detention Centre in South Australia.

64                  Whilst Mr Fernando was in immigration detention, he was given leave to amend application, WAD 207 of 2003, to challenge the lawfulness of the Acting Minister’s decision made on 3 October 2003.  One of the grounds relied on by Mr Fernando was the failure to afford him procedural fairness in relation to the making of the decision to cancel his visa.  Whilst Mr Fernando was in immigration detention, he was assessed by a psychiatrist, Dr Andrew Frukacz.  As a consequence of the assessment, a tutor was appointed to conduct Mr Fernando’s application on his behalf.

65                  On 20 December 2006, and whilst Mr Fernando’s application WAD 207 of 2003 for judicial review of the Minister’s decision was still pending, the decision in the case of Sales v Minister for Immigration and Multicultural Affairs [2006] FCA 1807 (Sales) was handed down.  Mr Sales was a British subject and permanent Australian resident who was serving a term of imprisonment after having been convicted of murder.  Whilst in prison, he was issued with a notice of intention to cancel his visa which gave him 14 days within which to make submissions as to why his visa should not be cancelled.

66                  Allsop J (as his Honour then was) determined that the Minister had failed to afford Mr Sales procedural fairness because 14 days was not a long enough period within which Mr Sales could fairly respond to the notice of intention to cancel Mr Sales’ visa on character grounds under s 501(2) of the Migration Act.  Allsop J observed at [33]:

I do not identify any rule that requires any particular length of time.  However, in my view, to give a person in this man’s position 14 days to put such material as he wanted to put before such a decision was made by reference to such criteria was not fair; it was not a fair opportunity for him and those with whom he might consult, being his family, not only to prepare the kinds of personal reflections that they did, but to consider whether that material should not be supplemented by professional assistance.

67                  There was no appeal from the decision of Allsop J.

68                  In January 2007, Mr Fernando, whilst still in immigration detention at the Baxter Immigration Detention Centre, received a letter from Mr Peter White, an Assistant Secretary in the Department of Immigration and Multicultural Affairs dated 18 January 2007.  The letter stated:

We are releasing you from immigration detention on the basis that you may not have been afforded procedural fairness in relation to the decision to cancel your Transitional (Permanent) visa on 3 October 2003 under section 501 of the Migration Act 1958 (the Act).

We have identified your case as one which is similar to the case which was the subject of the decision of the Federal Court in Sales v Minister for Immigration and Multicultural Affairs [2006] FCA 1807.

69                  On 18 January 2007, Mr Fernando was released from immigration detention after having been in immigration detention for three years, three months and 13 days.

70                  On 24 January 2007, the respondents consented to orders in application WAD 207 of 2003, setting aside the Acting Minister’s decision to cancel Mr Fernando’s visa made on 3 October 2003.  The orders of the Court setting aside the Acting Minister’s decision to cancel Mr Fernando’s visa, were entered on 31 January 2007.

71                  I made the findings of fact disclosed in [12]-[70] above.

72                  On 31 May 2007, Mr Fernando filed an application in this Court claiming compensation in respect of his detention.

73                  Subsequently, the Court appointed Mr John Ley, a barrister at the Western Australian Bar, who agreed to act pro bono publico, as tutor to Mr Fernando, for the purposes of conducting this application.

the witnessES

74                  Mr Fernando gave evidence and was cross-examined.  As mentioned, Ms Chow and Ms Lockhart gave evidence and were cross-examined.  Mr Fernando was from time to time argumentative during his cross-examination.  However, there were no material factual disputes which require that I make credibility findings in respect of any of the witnesses.

75                  As mentioned, Mr Fernando relied upon four causes of action, namely, false or wrongful imprisonment, negligence, breach of statutory duty and misfeasance in public office.  I deal below with each of the causes of action.

false imprisonment

76                  The first cause of action relied upon by Mr Fernando is the tort of false imprisonment.

77                  In the case of Ruddock v Taylor (2005) 222 CLR 612 at 650, at [140] (Ruddock v Taylor), Kirby J (who was in the minority in the result) observed:

Wrongful imprisonment is a tort of strict liability.  Lack of fault, in the sense of absence of bad faith, is irrelevant to the existence of the wrong.  This is because the focus of this civil wrong is on the vindication of liberty and reparation to the victim, rather than upon the presence or absence of moral wrongdoing on the part of the defendant.  A plaintiff who proves that his or her imprisonment was caused by the defendant therefore has a prima facie case.  At common law it is the defendant who must then show lawful justification for his or her actions.  (Footnotes omitted.)

78                  Kirby J in Ruddock v Taylor at 650, at [138], cited with approval, the following observations by Deane J in Re Bolton; Ex parte Beane (1987) 162 CLR 514 at 528‑529:

The common law of Australia knows no lettre de cachet or executive warrant pursuant to which either citizen or alien can be deprived of his freedom by mere administrative decision or action.  Any officer of the Commonwealth Executive who, without judicial warrant, purports to authorise or enforce the detention in custody of another person is acting lawfully only to the extent that his conduct is justified by clear statutory mandate…It cannot be too strongly stressed that these basic matters are not the stuff of empty rhetoric.  They are the very fabric of the freedom under the law which is the prima facie right of every citizen and alien in this land.  They represent a bulwark against tyranny.

79                  In support of his claim, Mr Fernando alleged that the decision to cancel his visa was unlawful because, on the following grounds, he had not been afforded procedural fairness in relation to the cancellation decision made by the Acting Minister on 3 October 2003:

(a)        Neither the Acting Minister nor the departmental officers revealed to Mr Fernando, either in summary form or at all, the contents of Annexure L and did not give him the opportunity to make submissions concerning its contents;

(b)        The notice calling on Mr Fernando to make submissions had given Mr Fernando only 14 days to make his submissions on why his visa should not be cancelled;

(c)        Mr Fernando was in prison at the time that he was given the notice; and

(d)        Mr Fernando had posted the submissions called for by the notice before the decision was made, but the Acting Minister had made the decision before the submissions had been received.

80                  Mr Fernando went on to allege that by reason of the failure to afford him procedural fairness, when the Acting Minister made the decision to cancel his visa, the Acting Minister had no jurisdiction to do so and, accordingly, the cancellation decision was a nullity and of no effect.

81                  Mr Fernando then pleaded that on 5 October 2003, he was released from Acacia prison on parole, but because of the Acting Minister’s decision to cancel his visa, “officers and/or servants and/or agents” of the Minister immediately took him into immigration detention.  Mr Fernando went on to allege that because the Acting Minister’s cancellation decision was unlawful, there was no lawful basis for his detention and that he had been falsely detained from 5 October 2003 to 18 January 2007.

82                  The respondents admitted that the decision of the Acting Minister to cancel Mr Fernando’s visa was unlawful on the basis that Mr Fernando had been denied procedural fairness because, as in the case of Sales, he had not been given sufficient time to provide submissions, bearing in mind that he had been in prison at the time.  Otherwise, the respondents did not admit that there had been a denial of procedural fairness on any of the other grounds alleged by Mr Fernando.

83                  I note in passing that, in their further re-amended defence (the defence), the respondents also pleaded a number of matters in response to Mr Fernando’s pleading as to the circumstances relating to the cancellation of his visa.  However, in light of the respondents’ admission that the Acting Minister’s cancellation decision was unlawful, and the strict liability nature of the tort of false imprisonment, it is unnecessary to consider these matters in this context.

84                  Significantly, however, in this context, is the respondents’ plea in para 19 of their defence.  At that paragraph, the respondents pleaded as follows:

The respondents admit that [Mr Fernando] was granted parole and released from prison on 5 October 2003 and that because of the [Acting Minister’s cancellation] of his visa he was placed in immigration detention.  The respondents further state:

(1)                that [Mr Fernando] was placed into immigration detention by employees of Australasian Correction Management, who were officers for the purposes of the Migration Act 1958 (Cth) acting under section 189 of that Act;

(2)                those officers then

(i)                 knew that the [Acting Minister] had made the decision cancelling the applicant’s visa; and

(ii)                suspected on the basis of that decision that the applicant was an unlawful non citizen;

The respondents otherwise deny the allegations in 37 and 38.

85                  At para 22(1) of their defence, the respondents pleaded that by reason of the matters pleaded at para 19 of the defence, the detention of Mr Fernando was lawful.

86                  The plea in para 19 of the respondents’ defence is significant because, as Kirby J observed in Ruddock v Taylor, once an applicant proves that he or she has been detained by a party, the onus is on the party responsible for the detention to demonstrate that the detention was authorised by law.

87                  Section 189(1) of the Migration Act, referred to in the defence of the respondents, relevantly provides as follows:

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

88                  In support of their defence to Mr Fernando’s claim that the respondents were liable for the false imprisonment of Mr Fernando, the respondents relied upon the case of Ruddock v Taylor.

89                  In the case of Ruddock v Taylor, the Minister cancelled Mr Taylor’s visa on character grounds relying on s 501(2) of the Migration Act.  Mr Taylor was a British subject who was a young child when he immigrated with his family to Australia.  He never became an Australian citizen.  Following his conviction and imprisonment for sexual offences against children, the Minister cancelled Mr Taylor’s permanent residency visa, and he was taken into immigration detention consequent upon the cancellation of his visa.  The cancellation of Mr Taylor’s visa was found to be unlawful and he was then released from immigration detention.  Following his release the Minister cancelled his visa a second time.  Mr Taylor was again taken into immigration detention.  After a further period in detention, the second cancellation of Mr Taylor’s visa was also found to be unlawful.  Mr Taylor was again released from immigration detention.  Mr Taylor then commenced an action against the Minister for false imprisonment.  The District Court in New South Wales awarded Mr Taylor damages in the sum of $116,000.  The Minister appealed to the New South Wales Court of Appeal which dismissed the appeal.  The Minister then appealed to the High Court.

90                  The High Court found that it did not follow from the fact that the decision of the Minister to cancel Mr Taylor’s visa was unlawful, that his detention was unlawful.  Gleeson CJ, Gummow, Hayne and Heydon JJ observed at 621, at [25]:

[T]he lawfulness of the decision to cancel the respondent’s visa, turned upon identifying valid legislative power to do so, and upon whether that power had been lawfully exercised.  That directed attention, principally, to s 501 of the Act.  By contrast, the lawfulness of the respondent’s detention turned upon whether there was statutory or other authority to detain him.  That required consideration of s 189.

91                  The majority then went on to make observations about the application of s 189 of the Migration Act.  At 622, at [27]:

Section 189 is directed not only to cases where an officer knows that a person is an unlawful non-citizen, it extends to cases where the officer reasonably suspects that a person has that status.  It follows that demonstrating that a person is not an unlawful non-citizen does not necessarily take the person beyond the reach of the obligation which s 189 imposes on officers.  Had it been intended that those who were to be subject to detention by an officer should be confined to those who are in fact unlawful non-citizens, s 189 would have been much simpler.  The section would have read, “an officer shall detain an unlawful non-citizen”.  The reference to an officer’s state of mind is explicable only if the section is understood as not confined in operation to those who are, in fact, unlawful non-citizens.  Further, the condition upon which the obligation to detain is premised, “[i]f an officer knows or reasonably suspects that a person…is an unlawful non-citizen”, is not to be read as excluding from its reach the case where an officer is subjectively convinced that a person is an unlawful non-citizen but later examination reveals that opinion to have been legally flawed.  The phrase “knows or reasonably suspects” is expressed disjunctively.  Its primary reference is to the officer’s subjective state of mind.  But the disjunctive expression of the necessary state of mind does not leave, as a middle ground, falling outside the operation of the expression, a case where an officer’s subjective opinion has passed from suspicion to certainty of belief but the subject matter of the belief (what the officer “knows”) is legally inaccurate.  Rather, in such a case the officer “knows or…suspects” that the person is an unlawful non‑citizen and the critical question would be whether the certainty of belief professed by the officer was reasonably based.  (Original emphasis.)

92                  At 628, at [49], the majority made the following observations:

At the trial of these proceedings, those officers who had been responsible for effecting the respondent’s detention gave unchallenged evidence of the steps each had taken before detaining the respondent.  Each officer had been provided with what, on its face, appeared to be a regular and effective decision of the Minister to cancel the respondent’s visa.  Each officer checked whether the respondent held any other visa.  Upon finding that he did not, the officer concerned detained the respondent.  (Emphasis added.)

93                  The majority then went on to observe that each of the apprehending officers reasonably suspected that the respondent was an unlawful non-citizen.  The consequence was that the Minister succeeded in showing that there was lawful authority for the detention of Mr Taylor with the consequence that he failed in his action for false imprisonment.  The majority, therefore, allowed the appeal from the New South Wales Court of Appeal.

94                  McHugh J (who was in the minority), took a different view on the question of whether the appellants had proved that the apprehending officers held the requisite state of mind in order to render the detention of Mr Taylor lawful.  At 638, at [97], McHugh J observed:

The onus was on the appellants to establish that Mr Taylor’s detention was made with lawful authority, and they failed to do so.  The argument for the appellants assumed that the officers had “a reasonable suspicion”.  But the trial judge made no finding that the officers had either of the mental states referred to in s 189.  It is far more probable than not they did not have either of the mental states that that section requires before a person can be lawfully detained.  (Original emphasis.)

95                  I now deal with the respondents’ contentions.

96                  First, the respondents contended that Mr Fernando’s claim should fail because s 189 of the Migration Act both authorises and requires officers to detain an unlawful non-citizen and Mr Fernando had not alleged in his statement of claim, that the officers who detained him, did not know of the decision to cancel his visa.  Mr Fernando, said the respondents, had pleaded that the detention was unlawful solely on the basis of the “defect in the procedure followed in cancelling the applicant’s visa”.

97                  This contention is not accepted.  It was sufficient that Mr Fernando proved, as he did, that he had been taken into, and subsequently held in, immigration detention by persons purporting to act on behalf of the first respondent.  As is evident from Ruddock v Taylor, it was then for the respondents to show that the detention was lawful.  The respondents took on the burden of proving that the detention was lawful by reference to s 189 of the Migration Act in para 19 of their defence.

98                  The question is, therefore, whether the respondents have proved that the detention was lawful by reason of s 189 of the Migration Act.  This, in turn, gives rise to the question of whether the relevant officers held the state of mind prescribed by s 189, namely, that he or she knew or reasonably suspected that Mr Fernando was an unlawful non-citizen.

99                  In this case, notwithstanding that, in their defence, the respondents relied upon the state of mind of each of the apprehending officers to justify the detention of Mr Fernando as lawful, the respondents did not lead evidence from the ACM employees who took Mr Fernando into immigration detention, immediately upon his release on parole from Acacia prison.

100               The respondents did, however, lead evidence from Ms Lockhart, who said that her duties included making arrangements for the detention, removal and deportation of unlawful non-citizens in accordance with the Migration Act.  Ms Lockhart said that her standard procedure before making such arrangements, where there had been a visa cancellation, was to satisfy herself that the visa had been cancelled by sighting a copy of the signature page of the Minister’s decision.  Ms Lockhart said that she did not specifically recall the circumstances of Mr Fernando’s visa cancellation, but she did not recall departing from her standard practice.

101               Ms Lockhart deposed that she had prepared and faxed the documents referred to in [53]-[58] above, late on the afternoon of 3 October 2003.

102               In his statement of evidence, Mr Fernando said at [49]-[50]:

The day after I was taken to Perth IDC, two immigration officers interviewed me there.  They told me that I had no outstanding court matters, and would be removed from Australia within two days.  I told them that I had an application pending in the Federal Court filed the previous week.  They appeared to be unaware of this.

After I was asked to go back to the detainee area, I called the AIMS supervisor at the time, and showed him a copy of the document of my Second Application showing the pending Federal Court directions hearing in October.  When he saw this, he took it to show it to the Department manager at the detention centre, and asked him to put a hold on my removal.

103               Senior counsel for the respondents cross-examined Mr Fernando in respect of this issue as follows:

You were taken from Acacia Prison into custody by ACM, correct?---ACM, correct, one lady and one man.

Right, and as I understood it from your evidence, you were also interviewed by two immigration officers?---After or before?

After?---Correct.

After you were taken into Perth IDC, you were interviewed by immigration officers, correct?---Correct, the following day.  It was a Sunday, I suppose I was taken and the Monday.

…

I just want to ask you about the conversations.  The immigration officers, you had been told your visa was cancelled, you were told that you were going to be removed from Australian [sic] within two days.  Did you tell the immigration officers that you had an application in the Federal Court?---I certainly did and showed - then I went to the area, the retaining area and I pulled the original document, the Federal Courts and called the supervisor and I asked them to take it to the DIMIA manager.

Right.  And you told them that you were challenging the decision cancelling your visa; correct?---I told them that I had appealed against the notice.

Yes?---And I told them that I had appealed against the decision to cancel.

Right.  And did you also tell the people from AIMS to ACM, the people who were running the detention centre, that you were appealing against the notice you were appealing against the decision to cancel your visa?---I had told them I had already done.

Right?---And the proof was in my files in the detainee area and I pull the document, the original I gave it to the supervisor, “Look, these guys are trying to – they’re saying that I’ve got no outstanding court matters, please go and show this to the DIMIA manager,” and then he did that and then hours later, during lunchtime, I got a call from the Sri Lankan High Commission.

Well, before we get to the Sri Lankan High Commission, you’ve already agreed that you told the immigration officials that you were challenging the notice and you were challenging the decision to cancel your visa?---No, please - - -

Sorry, when I say – you had already done it?---I had told them that I had already lodged those applications.

Right.  And did you tell the same thing to the people from the detention centre that you had challenged the decision to cancel your visa?---I not only told them I showed them the proof.

And from the time that you were in detention until you were released from detention, you had court matters ongoing, didn’t you?---From the time I was released - - -

From the time you were put in detention until you were released, you had matters in the Federal Court challenging the decision?---Correct.

Did you discuss those matters with the people in the detention centre?---Yes.

Including the people who were running the detention centre?---Including people who were running the detention centre.

104               The respondents relied on two contentions to show that the relevant officers responsible for the detention of Mr Fernando each held the state of mind prescribed by s 189 of the Migration Act, namely, that he or she knew or reasonably suspected that Mr Fernando was an unlawful non-citizen.

105               I observe that neither of these contentions finds expression in the defence of the respondents, which as I have said, pleads the state of mind of the apprehending officers as founding the lawfulness of the detention.

106               However, these two contentions were made, without objection from counsel for Mr Fernando, in the respondents’ opening written submissions filed on the day before the commencement of the trial.  Further, the evidence from Ms Lockhart was led, and Mr Fernando was cross-examined as to the matters referred to above, by senior counsel for the respondents, without objection from Mr Fernando’s counsel.  Further, senior counsel for the respondents made these contentions in final closing submissions without objection from Mr Fernando’s counsel.  In my view, therefore, the trial was conducted on the basis that it was open to the respondents to rely upon these two contentions as part of their case (Dare v Pulham (1982) 148 CLR 658).

107               The respondents’ first contention was that in respect of the detention of Mr Fernando on 5 October 2003, it was the state of mind of Ms Lockhart as to the status of Mr Fernando that was relevant in determining whether the detention of Mr Fernando on that date was lawful by reason of s 189 of the Migration Act.  It was contended that Ms Lockhart was instrumental in effecting the detention of Mr Fernando and that she entertained the requisite state of mind by reason of having learned on 3 October 2003, that Mr Fernando’s visa had been cancelled.

108               I do not accept this contention.  In Ruddock v Taylor, the High Court had regard to the state of mind of each of the officers who had effected the actual detention of Mr Taylor.  McHugh J referred to them as the “apprehending officers”.  In the case of Goldie v Commonwealth (2002) 117 FCR 566 (Goldie), Mr Cain, the officer, whose state of mind was relied upon, was part of the team of persons (which included ACM officers) that arrested Mr Goldie at his work place.  At 573, at [20], it is clear that the Full Court in Goldie regarded Mr Cain as having arrested Mr Goldie, when it said:  “Mr Cain’s action in arresting [Mr Goldie] was precipitate and not justified by s 189(1) of the Migration Act”.

109               The respondents also submitted that on 3 October 2003, Ms Lockhart conveyed the information as to the cancellation of Mr Fernando’s visa to Mr Sun by means of the documents that she sent to him late on that afternoon.  The respondents contended that I should, on this basis, infer that the persons who detained Mr Fernando at Acacia prison thereby knew or reasonably suspected that Mr Fernando was an unlawful non-citizen.  I decline to do so because neither Mr Sun nor the ACM apprehending officers gave evidence.  Therefore, there was no evidence as to when, if ever, Mr Sun saw the documents sent by Ms Lockhart; and, if he did see them, what he understood the documents to convey as to Mr Fernando’s immigration status.  In this regard, I note that whilst Ms Lockhart refers in her evidence-in-chief, to having made a follow-up telephone call, after she sent the facsimile transmission, significantly, she does not say that she spoke to Mr Sun.  There was also no evidence that anyone ever advised the two persons who apprehended Mr Fernando as to his immigration status in general; and that his visa had been cancelled, in particular.  As mentioned, in Ruddock v Taylor and Goldie the apprehending officers gave evidence.

110               It follows that I find that the respondents have failed to discharge the onus of showing that the two persons, acting on behalf of the first respondent, who effected the detention of Mr Fernando at Acacia Prison on 5 October 2003, knew or reasonably suspected that Mr Fernando was an unlawful non-citizen.  It follows that the respondents have failed to prove that the detention of Mr Fernando on 5 October 2003, was lawful.

111               The second contention made by the respondents relied upon the evidence of Mr Fernando that, on 6 October 2003, being the day after he was first detained, he told the supervisor of the Perth Immigration Detention Centre, that he had challenged, by an application made to this Court, the cancellation of his visa.  The respondents contended that the inference to be drawn from this evidence is that, from that date onwards, officers of the first respondent knew or reasonably suspected that Mr Fernando was an unlawful non-citizen.

112               There is no dispute that the persons who were in control of the Perth Immigration Detention Centre, were employees of ACM.

113               It is also apparent from Mr Fernando’s witness statement and the extract of the cross‑examination of Mr Fernando referred to at [103] above, that Mr Fernando advised the supervisor of the Perth Immigration Detention Centre, that he had challenged the Acting Minister’s decision to cancel his visa.  In his witness statement, Mr Fernando mistakenly referred to the supervisor as the AIMS supervisor, rather than the ACM supervisor.  I infer from that evidence that the unnamed supervisor of the Perth Immigration Detention Centre to whom Mr Fernando spoke, would have concluded that Mr Fernando’s visa had been cancelled; and would have, accordingly, known or suspected that Mr Fernando was an unlawful non-citizen, who was being held in detention pending his deportation to the country of his citizenship.

114               Further, because this advice was given to the ACM supervisor by Mr Fernando directly, I find that the supervisor’s suspicion that Mr Fernando was an unlawful non-citizen, would have been reasonably held.

115               Mr Fernando challenged the respondents’ contention that employees of ACM were officers for the purposes of s 189 the Migration Act.  However, the respondents produced the extract from the Australian Government Gazette which evidenced that fact.  I, accordingly, reject Mr Fernando’s contention on this issue.

116               It follows that I find that from Monday, 6 October 2003, officers for the purpose of s 189 of the Migration Act, who held Mr Fernando in immigration detention, knew or reasonably suspected, that Mr Fernando’s visa had been cancelled and that he was on that basis, an unlawful non-citizen who was challenging that status.  I reject the contention by Mr Fernando that by reason of that Court challenge, the suspicion held by the officers detaining Mr Fernando was unreasonable.  This is because, in my view, it was not incumbent on the officers to investigate the legality of the cancellation of Mr Fernando’s visa.  Such a requirement would place an undue burden on a detaining officer.  Further, it would, generally speaking, have no utility because a detaining officer would reasonably take the view that, until any decision to cancel a non-citizen’s visa was set aside by a court, he or she would have to treat the decision as being effective.

117               Further, I find that no circumstance occurred between 6 October 2003 and 18 January 2007, when Mr Fernando was released from immigration detention, which would have altered the state of mind of the officers detaining Mr Fernando, from that held on 6 October 2003.  I find, therefore, the officers detaining Mr Fernando during the period 6 October 2003 to 18 January 2007, knew or reasonably suspected, during that period, that Mr Fernando was an unlawful non-citizen.

118               In making these findings of fact, which are crucial to the determination of the lawfulness of the detention of Mr Fernando, I note that in certain circumstances the law imposes special considerations going to the proof of facts, depending on the nature of the matters to be proved.  Thus, for example, the law requires strict proof of matters alleged in a bankruptcy petition because of the serious consequences attendant upon a person being adjudged to be bankrupt.  Further, the Briginshaw principle applies when serious misconduct is alleged against a person.  However, on my reading of the decision of the majority in Ruddock v Taylor, it appears that no such considerations apply in relation to the proof of the matters set out in s 189 of the Migration Act.

119               It, therefore, follows that the respondents have failed to demonstrate that the detention of Mr Fernando was lawful when he was initially detained on 5 October 2003, but the respondents have demonstrated that his detention from 6 October 2003 to 18 January 2007 was lawful.

120               I find, therefore, that Mr Fernando was falsely detained for one day by officers of the first respondent.  There is no dispute that the Acting Minister’s action in purporting to cancel Mr Fernando’s visa was a direct cause of Mr Fernando’s unlawful detention.

121               I find that, in preparing and forwarding the minute and issues paper to the Acting Minister on 3 October 2003, the departmental officers were acting pursuant to a departmental stratagem directed to facilitating the making by the Acting Minister of a cancellation decision by 3 October 2003, so that if such a decision was made, Mr Fernando would be arrested immediately on his release from prison on 5 October 2003.  I find that the departmental officers’ conduct was directed towards having the Acting Minister make a decision at that time, and not at a later time after Mr Fernando’s written submissions had been received.  I find that the Acting Minister would not have made his decision on that day, and in those circumstances, but for the actions of the departmental officers (Ruddock v Taylor (2003) 58 NSWLR 269 at 276-277).

122               I find that the departmental officers in forwarding of the minute and issues paper to the Acting Minister, knew that the Acting Minister, in making his decision, would not be in a position to consider Mr Fernando’s submissions and that they knew, therefore, that if the Acting Minister made a decision to cancel Mr Fernando’s visa, that such a decision would be made in excess of power because of the denial of procedural fairness.  I find, therefore, that the conduct of the departmental officers was a direct cause of the wrongful arrest and detention of Mr Fernando.

123               I find, therefore, that the first and second respondents are liable in damages to Mr Fernando for the tort of false imprisonment in respect of his unlawful detention on 5 October 2003.

124               At the commencement of the case, senior counsel for the respondents said that, whilst there was a real question as to whether the first respondent would be vicariously liable for the acts of the Acting Minister, the first respondent would in this case, accept that it was vicariously liable for the acts or omissions of the Acting Minister.

Damages

125               Mr Fernando claimed damages on the basis of the fact that he was unlawfully detained throughout the period 5 October 2003 to 18 January 2007.

126               In the case of Goldie v Commonwealth (No 2) (2004) 81 ALD 422 (Goldie (No 2)), French J (as his Honour then was) considered the question of damages for false imprisonment in circumstances where Mr Goldie was unlawfully arrested and detained by Mr Cain and other officers of the first respondent.  Mr Goldie was unlawfully detained for a period of three days.

127               At 428, at [14], French J observed:

The assessment of damages for false imprisonment is necessarily informed by the general proposition that (J Fleming, The Law of Torts, 8^th ed, Law Book Co, Sydney, 1992, p 29):

False imprisonment trenches not only upon a person’s liberty but also on his dignity and reputation, and this is reflected in the calculation of damages.

The compensatory damages are assessed by reference, inter alia, to the duration of the deprivation of liberty and to hurt or injury to the plaintiff’s feelings, that is to say the injury, mental suffering, disgrace and humiliation suffered as a result of the false imprisonment:  F Trindale and P Cane, The Law of Torts in Australia, 3^rd ed, Oxford University Press, Melbourne, 1999, p 302.

128               French J referred with approval, to the following observations of Spigelman CJ in Ruddock v Taylor (2003) 58 NSWLR 269 at 279, at [49]:

Damages for false imprisonment cannot be computed on the basis that there is some kind of applicable daily rate.  A substantial proportion of the ultimate award must be given for what has been described as “the initial shock of being arrested” (Thompson v Commissioner of Police of the Metropolis).  As the term of imprisonment extends the effect upon the person falsely imprisoned does progressively diminish.  (Footnote omitted.)

129               French J assessed damages at $22,000.  At 429-430, at [21], French J observed:

In my opinion, an appropriate award is in the amount of $22,000.  In arriving at that figure I have endeavoured to identify the various elements of the wrongful arrest and detention and to assess a component of the amount by reference to each of those elements.  This is not to suggest that the final total is any more precisely based by reason of that but rather to indicate the aspects of Mr Goldie’s arrest and incarceration which I have taken into account.  That notional breakdown is as follows:

1.         The wrongful arrest and associated physical restraints                         $5000

            including an allowance for humiliation and indignity

            inflicted at the time of apprehension

2.         The conduct, in detention, of pat searches, the                                     $2000

            medical examination and other requirements wrongfully

            imposed on Mr Goldie

3.         Detention for a period of 3 days from about 3.35 pm on                     $15,000

            24 February to the afternoon of 27 February, including

            an allowance for the continuing humiliation and

            indignity associated with that detention

                                                                                       Total                   $22,000

The damages so awarded are awarded against the Commonwealth, the minister and Mr Cain jointly and severally.

130               In the particulars of loss and damage, Mr Fernando said that he had suffered a loss of liberty for three years, three months and 14 days, suffered trauma and clinical depression and a permanent exacerbation of a pre-existing psychiatric condition as well as anxiety and distress.  He also said that he had suffered the loss of employment and educational opportunities and the capacity to earn an income.

131               I have found that Mr Fernando was wrongfully detained for one day.  Accordingly, the question of whether Mr Fernando’s mental condition was exacerbated by the lengthy period of his detention does not arise.  I would observe, however, that in any event, there was no evidence supporting that claim.  However, Mr Fernando is entitled to damages in respect of the deprivation of liberty and injury to his dignity occasioned by his unlawful arrest and detention for the one day.  In my view, the decision of French J in Goldie (No 2) is instructive in determining the quantum of damages in this case.

132               Mr Fernando deposed that, having been granted parole with a full remission, he was looking forward to his freedom.  However, Mr Fernando also knew, from his involvement for a substantial period in his immigration litigation, that, by reason of his conviction of a serious crime, he was liable to have his visa cancelled and be deported.  Further, Mr Fernando knew by 4 October 2003, that the Acting Minister had cancelled his visa and, therefore, he would have known that he was at risk of being detained on his release from Acacia prison.  Thus, the “initial shock” of the arrest as a consideration in the assessment of damages, referred to by Spigelman CJ, is of substantially lesser significance in this case than in a case where the arrest came completely out of the blue.

133               Further, the circumstances of Mr Fernando’s arrest and detention were different from those of Mr Goldie.  Mr Goldie was arrested and detained by officers of the first respondent at his workplace and in public.  This was a factor which weighed with French J in assessing damages founded upon injury to dignity and humiliation suffered by Mr Goldie.  At 429, at [17], French J observed:

Wrongful arrest and imprisonment even for a short time is a serious matter whose seriousness is measured not solely by the length of the period of incarceration.  Arrest and imprisonment involve a grave interference with the rights of the individual coupled with humiliation which is both private and public.  The arrest in this case occurred in a public setting and added to the indignity suffered by Mr Goldie.

134               By contrast, the arrest of Mr Fernando occurred at Acacia prison where the affront to his dignity and the humiliation would not have been exacerbated by the location of his arrest, as was the case with Mr Goldie.  Further, the fact that Mr Fernando had been in detention for more than five years before he was taken into immigration detention, would have very substantially dissipated the extent of the affront to his dignity, which would otherwise have occurred, by being taken into immigration detention.

135               In those circumstances, in my view, the appropriate quantum of damages to be awarded to Mr Fernando in respect of his false imprisonment for one day is $3,000.00.

Exemplary and aggravated damages

136               Mr Fernando also claimed aggravated and exemplary damages on the basis that the respondents had acted in “contumelious disregard” of his rights in that they had deliberately acted to cancel Mr Fernando’s visa knowing that he had not been afforded natural justice.

137               An authority, Muuse v Secretary of State for the Home Department [2010] EWCA Civ 453, which was decided after judgment in this case was reserved, has come to my attention.  I would like to hear the parties further on the question of exemplary and aggravated damages in light of this authority.  I will, therefore, adjourn the question of exemplary and aggravated damages to a date to be fixed.  I reserve making any factual finding that may be relevant to that question, until after I have heard further submissions.

negligence

138               The second cause of action relied upon by Mr Fernando is negligence.

139               Mr Fernando contended that the departmental officers, in requesting that the Acting Minister make the visa cancellation decision; and the Acting Minister, in making the cancellation decision, each owed Mr Fernando a duty of care to ensure that the Acting Minister had jurisdiction to make the decision, and that, if he decided to cancel the visa, that there was a lawful basis on which to detain Mr Fernando.

140               It is then pleaded (para 44 of the further amended statement of claim) that in breach of their respective duties of care, the first respondent and the Acting Minister failed to ensure that the Acting Minister had jurisdiction to make the decision to cancel Mr Fernando’s visa and that there was a lawful basis on which to detain Mr Fernando.

141               In the particulars of negligence, Mr Fernando alleged that the departmental officers forwarded the minute to the Acting Minister without revealing to Mr Fernando the contents of Annexure L; without waiting for and considering Mr Fernando’s submissions, and without considering the material already in the possession of the department.  The same particulars were, mutatis mutandis, relied upon by Mr Fernando in respect of his allegation of negligence by the Acting Minister.

142               In the case of Sullivan v Moody (2001) 207 CLR 562 (Sullivan), the High Court observed at 582, at [60]:

The circumstance that a defendant owes a duty of care to a third party, or is subject to statutory obligations which constrain the manner in which powers or discretions may be exercised, does not of itself rule out the possibility that a duty of care is owed to a plaintiff.  People may be subject to a number of duties, at least provided they are not irreconcilable.  A medical practitioner who examines, and reports upon the condition of, an individual, might owe a duty of care to more than one person.  But if a suggested duty of care would give rise to inconsistent obligations, that would ordinarily be a reason for denying that duty exists.  Similarly, when public authorities, or their offices, are charged with the responsibility of conducting investigations, or exercising powers, in the public interest, or in the interests of a specified class of persons, the law would not ordinarily subject them to a duty to have regard to the interests of another class of persons where that would impose upon them conflicting claims or obligations.

143               Neither counsel referred me to any case in which the Court had considered whether departmental officers, or the Minister, owed a duty of care to the affected visa holder to ensure that the Minister acted lawfully in cancelling a visa under s 501(2) of the Migration Act.

144               In the case of W v The Home Office [1997] Imm AR 302, however, the English Court of Appeal considered the question of whether the Home Secretary, or an immigration officer, owed a duty of care in relation to the exercise of their powers under the Immigration Act 1971 (UK), to an asylum seeker, who had been detained under that Act.

145               In that case, the plaintiff, W, a Liberian citizen, arrived at Heathrow airport and claimed asylum.  An immigration officer ordered that the plaintiff be detained.  The plaintiff’s solicitor made representations that the plaintiff should be allowed temporary admission into the United Kingdom.  On 18 and 19 March 1994, the plaintiff was interviewed by immigration officers.  The plaintiff’s solicitor was told by the chief immigration officer that until the plaintiff established that he was a Liberian citizen, he would not be released from detention.  On 11 April 1994, the plaintiff and his solicitor attended an interview at Heathrow Airport with an immigration officer.  By then the plaintiff had been detained in an immigration detention centre for a month.  At the interview, the immigration officer explained that it had not been accepted that the plaintiff was a Liberian citizen because of his poor performance at an immigration interview, during which he had been asked questions aimed at establishing his identity as a Liberian citizen.  The immigration officer explained that the plaintiff had scored three out of a possible 15 points and that a true Liberian would have found it easy to answer all the questions.  The plaintiff denied that he had taken any such test, but agreed to take a further test there and then.  Having been given the test, the plaintiff passed it with ease.  The immigration officer then discovered, having rechecked the plaintiff’s file, that, by mistake, a test given to someone else had been placed on the plaintiff’s file, thus causing the Home Office to have doubts about his true identity.  The chief immigration officer then apologised and the plaintiff was released from detention.  The plaintiff sued the Home Office for damages, claiming that his detention had been caused by the negligence of the immigration officers in carrying out their duties.

146               Lord Woolf MR (with whom Thorpe and Waller LJJ agreed) listed a number of principles to be considered in determining whether a person exercising a statutory duty owed a duty of care.  At 310, Lord Woolf MR observed:

It is less likely that a duty of care would be imposed on a person exercising his public duty ie even where the statutory duty is being implemented, if:

(1)                a potential conflict could arise between the carrying out of the public duty, and acting defensively for fear of an action in negligence being brought;

(2)                where the category of public servant is one similar to the police or Crown Prosecution Service as considered in Hill v The Chief Constable of West Yorkshire [1989] 1 AC 53 and Elguzouli-Daf v The Commissioner of the Metropolis [1995] QB 335, and where:

(a)                the general sense of public duty of such servants is unlikely to be appreciably reinforced by the imposition of liability;

(b)                the recognition of the existence of a cause of action even in quite limited circumstances would likely to lead to the bringing of a substantial number of cases, and a diversion of the public servants concerned away from their duties contrary to the general public’s interests; and

(c)                where there are other private law remedies available if there is a deliberate abuse of power, and public law remedies available to challenge decisions.

It seems to us that the application of each of these principles to the situation under consideration is inconsistent with the existence of a duty of care being owed by the immigration officer to the immigrant who has been detained.

147               Lord Woolf MR went on to observe at 312:

The process whereby the decision-making body gathers information and comes to its decision cannot be the subject of an action in negligence.  It suffices to rely on the absence of the required proximity.  In gathering information, and taking it into account the defendants are acting pursuant to their statutory powers and within that area of their discretion where only deliberate abuse would provide a private remedy.  For them to owe a duty of care to immigrants would be inconsistent with the proper performance of their responsibilities as immigration officers.  In conducting their inquiries, and making decisions in relation to immigrants, including whether they should be detained pending those inquiries, they are acting in that capacity of public servant to which the considerations outlined above apply.  As Lord Moulton put it in Everett v Griffiths:

If a man is required in the discharge of a public duty to make a decision which affects by its legal consequences, the liberty or property of others, and he performs that duty and makes that decision honestly and in good faith, it is, in my opinion, a fundamental principle of our law that he is protected.  It is not consonant with the principles of our law to require a man to make such a decision in the discharge of the duty to the public and then leave him in peril by reason of the consequences to others of that decision, provided that he has acted honestly in making that decision.

Lord Moulton may in the context of that case have been contemplating immunity from suit for negligence but the sentiment supports the concept of it not being fair or reasonable to impose liability for negligence in the case of an immigration officer performing his public duty.  (Footnote omitted.)

148               The observations of the High Court in Sullivan, and those of Lord Woolf MR in the case of W v The Home Office, to which I have referred above, are apposite to the circumstances of this case.

149               The power which is vested in the Minister under s 501 of the Migration Act to cancel a visa on character grounds, is, par excellence, a power which is to be exercised in the public interest.  Accordingly, in my view, the inconsistency considerations, referred to by the High Court and Lord Woolf MR, apply in respect of the exercise of the s 501(2) power, and militate strongly against the existence of a duty of care being owed by the Minister or departmental officers in relation to the exercise of the s 501(2) power.

150               There are other factors which also militate against the existence of any duty of care being owed by the Minister and the departmental officers to an affected visa holder in relation to the exercise of the s 501(2) power.  First, the Migration Act provides that the affected visa holder is entitled to procedural fairness in relation to the making of a visa cancellation decision under s 501(2).  Secondly, administrative law remedies are available in relation to any cancellation decision made under s 501(2).  Thirdly, the tortious remedy of misfeasance in public office is available in respect of a deliberate abuse of power in relation to the exercise of s 501(2) power.

151               It follows that, in my view, neither the departmental officers who prepared the minute, nor the Acting Minister, owed Mr Fernando a duty of care in relation to the exercise of the s 501(2) power to cancel his visa.  The consequence is that Mr Fernando’s claim founded in negligence is dismissed.

152               At the commencement of the trial, counsel for Mr Fernando referred to a statement of the issues which Mr Fernando contended, were issues to be decided at the trial.  One of the issues listed was whether the respondents owed a continuing duty of care to ensure that Mr Fernando was not psychologically or otherwise harmed by his detention.

153               Senior counsel for the respondents objected to this aspect of the statement of issues.  Senior counsel said that the question of whether the respondents owed Mr Fernando a duty of care in relation to his mental health whilst in immigration detention, and whether the respondents had breached any such duty of care, were not issues which arose on the pleaded case.  Senior counsel went on to contend that had such a case been pleaded, the respondents would have been required to defend, and would have defended, the claim in a very different manner.  Counsel for Mr Fernando, correctly, in my view, withdrew the contention that that question was an issue to be tried in this proceeding.

breach of statutory duty

154               The third cause of action relied on by Mr Fernando is breach of statutory duty.

155               Mr Fernando pleaded that the Acting Minister, in deciding whether to cancel Mr Fernando’s visa, was under a duty to Mr Fernando, imposed by the provisions of the Migration Act, to act in accordance with the provisions of the Migration Act.  Mr Fernando pleaded that the Acting Minister breached that duty because he decided to cancel Mr Fernando’s visa without affording Mr Fernando procedural fairness and, therefore, he lacked jurisdiction to make the cancellation decision.

156               Mr Fernando also pleaded that the departmental officers were under a duty to Mr Fernando, imposed by the provisions of the Migration Act, to act in accordance with the Migration Act and to continually monitor the legal basis of Mr Fernando’s immigration detention.  It was then alleged that the departmental officers acted in breach of that duty by requesting the Acting Minister to make a decision whether to cancel Mr Fernando’s visa when he had no jurisdiction to do so; and by causing the detention of Mr Fernando when there was no legal justification for that detention.

157               In the case of Byrne v Australian Airlines Limited (1995) 185 CLR 410 at 424, Brennan CJ, Dawson and Toohey JJ considered the circumstances in which a cause of action for damages for  breach of statutory duty would arise and observed:

A cause of action for damages for breach of statutory duty arises where a statute which imposes an obligation for the protection or benefit of a particular class of persons is, upon its proper construction, intended to provide a ground of civil liability when breach of the obligation causes injury or damage of a kind against which the statute was designed to afford protection.  (Footnote omitted.)

158               The statutory provision in question, namely, s 501 of the Migration Act, is not a statutory provision for the protection of visa holders who by reason of their substantial criminal records, are liable to have their permanent residency visas cancelled on character grounds.  It is not possible to construe that statutory provision as intending to confer a right to claim compensation in circumstances where the Minister or his or her officers, fail to exercise that power lawfully.  As mentioned in [150] above, there are other protections afforded to visa holders affected by this provision of the Migration Act.

159               Accordingly, Mr Fernando’s claim founded on breach of statutory duty is dismissed.

misfeasance in public office

160               The next cause of action pleaded by Mr Fernando is misfeasance in public office.

161               In the case of Sanders v Snell (1998) 196 CLR 329 at 346-347, at [42], Gleeson CJ, Gaudron, Kirby and Hayne JJ observed as follows in relation to the tort of misfeasance in public office:

It is an intentional tort.  As was said in Mengel:

…the weight of authority here and in the United Kingdom is clearly to the effect that it 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.  (Footnotes omitted.)

162               Mr Fernando alleged that the Acting Minister had made the decision to cancel Mr Fernando’s visa when the Acting Minister knew that he had no jurisdiction to do so or, with reckless disregard to the question of whether or not he had jurisdiction to do so.  I understand this to be a claim falling within the second form of the tort referred to in the observations of the High Court in Sanders in the preceding paragraph.

163               Mr Fernando alleged that the Acting Minister lacked the jurisdiction to cancel his visa because he had not been afforded procedural fairness in relation to the making of the cancellation decision by the Acting Minister.  There were three grounds upon which Mr Fernando alleged he had not been afforded procedural fairness in relation to the making of the cancellation decision.

164               First, Mr Fernando alleged that at the time that the Acting Minister made the cancellation decision, neither the departmental officers nor the Acting Minister, had revealed to him, either in summary form or at all, the contents of Annexure L, and he had not been given the opportunity to make submissions concerning the contents of Annexure L.  In my view, this contention cannot be upheld.  It is apparent from the terms of the minute and the issues paper that the contents of Annexure L were not disclosed to the Acting Minister and that, therefore, he did not take it into account in making his decision to cancel Mr Fernando’s visa.  In those circumstances, there was no need to disclose that information (whether in summary form or at all) to Mr Fernando, in order to seek his comments on the information, as part of the procedural fairness process.

165               Secondly, Mr Fernando alleged that he had not been afforded procedural fairness because he had not been given a fair opportunity to provide submissions as to why his visa should not be cancelled.  This was because he had only been given 14 days to provide submissions, and he was in prison at the time.  The respondents accepted that Mr Fernando had, on this ground, not been afforded procedural fairness in relation to the making of the cancellation decision.  It was on this basis, said the respondents, that the respondents had consented to the Court order setting aside the cancellation decision.

166               Thirdly, Mr Fernando contended that he had not been afforded procedural fairness because, the Acting Minister, in the knowledge that Mr Fernando had been invited to make written submissions, and that those submissions had been posted, made the decision to cancel the visa without waiting for the submissions to arrive, and, therefore, without taking those submissions into account.

167               In my view, these circumstances constituted a failure to afford Mr Fernando procedural fairness in relation to the decision made by the Acting Minister on 3 October 2003 to cancel his visa.  The whole purpose of inviting an affected visa holder to submit written submissions is so that the submissions are considered by the decision-maker as part of the decision-making process.  In this case, Mr Fernando had made it known to the departmental officers that he had compiled lengthy written submissions which he wished the Acting Minister to consider, and that these submissions had been posted on 29 September 2003.  There was no statutory imperative which required the Acting Minister to make the decision to cancel the visa on 3 October 2003.  It was open to the Acting Minister to decline to make the decision, so that the decision could be made after Mr Fernando’s written submissions had been received and considered.  As it happened, the submissions arrived in Canberra on 7 October 2003.  It follows that, in my view, the Acting Minister’s cancellation decision was invalid for this reason, as well as the Sales reason.

168               I observe that the respondents also pleaded that Mr Fernando had not sent his written submissions to the department in Perth, as requested in the notice of 17 September 2003; and that he had refused to make available further copies of the submissions to the departmental officers who visited him in Acacia prison on 2 October 2003.  The gravamen of this plea is not altogether apparent.  However, the very object of asking Mr Fernando to make the submissions was to have those submissions considered by the decision-maker.  The procedural fairness process is prescribed for the benefit of the affected visa holder, and not for the convenience of the departmental officers.  Whilst it may have been inconvenient to the departmental officers who were minded to give effect to their stratagem, that Mr Fernando sent the submissions to Canberra direct and did not give a copy of the submissions to the departmental officers when they visited him in Acacia prison, this did not affect Mr Fernando’s entitlement to procedural fairness.

169               The next question is whether, in making the cancellation decision, the Acting Minister knowingly acted in excess of his power to cancel Mr Fernando’s visa under s 501(2) of the Migration Act, or with reckless disregard as to whether he was acting in excess of power.

170               The respondents contended that the failure to afford Mr Fernando procedural fairness would not of itself be sufficient to establish the requisite mental state on the part of the Acting Minister, for the Acting Minister to be liable for misfeasance in public office.  The respondents contended that it would be necessary for Mr Fernando to establish that the Acting Minister was aware that he was denying Mr Fernando procedural fairness in a way that went to the existence of the power to cancel the visa.

171               The respondents relied specifically on observations made by the Full Court in the case of Sanders v Snell (No 2) (2003) 130 FCR 149 (Sanders (No 2)) at 180-181, at [116] and [117].

172               In Sanders (No 2) at 180-181, at [116], the Full Court referred to the decision of Debelle J in Rowan v Cornwall (No 5) (2002) 82 SASR 152 and then observed in relation to that case:

As to the second form, in connection with absence of procedural fairness in the decision to withdraw funding from the women’s shelter, Debelle J said (at 358):

The power to withdraw funding of course existed but Dr Cornwall did not turn his mind to the question of procedural fairness, that is to say, whether he should give the shelter an opportunity of being heard before funding was withdrawn.  Nor did he receive any advice on the question of procedural fairness.  He was plainly set upon a course to close the shelter.  So fixed was his purpose that he was oblivious to the obligation to accord procedural fairness.  He simply did not think of that obligation.  I do not think that constitutes a reckless indifference as to the question whether he had power because, plainly, the power existed subject to the obligation to accord procedural fairness.

His Honour quoted Brennan J in Mengel (at 356):

The history of the tort shows that a public officer whose action has caused loss and who has acted without power is not liable for the loss merely by reason of an error in appreciating the power available.  Something further is required to render wrongful an act done in purported exercise of a power when the act is ulta [sic] vires.

173               The Full Court then went on to find that misfeasance in public office had not been established against Mr Sanders.  The Full Court observed further at 181, at [116]:

True it is that there was evidence that Sanders had been told of the desirability of according procedural fairness but not on the basis that this went to power, nor was he cross-examined on that basis.

174               The Full Court then went on to say at 181, at [117]:

We should add that we do not understand the learned trial judge’s finding that the defendant intended to cause harm by “unlawfully” removing the plaintiff from office to be a finding that the defendant knew that his actions were unlawful.  We consider that this is apparent from the context including, particularly, [89] of the judge’s reasons from which it seems clear that the unlawfulness referred to was not unlawfulness of which the defendant was necessarily aware.  In other words, the intention that was the subject of the judge’s finding was an intention to cause harm by the exercise of power in a way that was in fact unlawful, and not an intention to cause harm in the knowledge that the power was exercised unlawfully.

175               The respondents went on to contend that there was no evidence that the Acting Minister knew or ought to have known, that the exercise of the power to cancel Mr Fernando’s visa was flawed.

176               In Sanders (No 2), the defendant, Mr Sanders, who was the Minister of Tourism in Norfolk Island, gave evidence.  However, in this case, the Acting Minister did not give evidence.

177               I infer from the following facts and circumstances that at the time that the Acting Minister made the decision to cancel the visa, he knew that Mr Fernando had not been afforded procedural fairness in relation to the decision, and he knew that the failure to afford procedural fairness went to the lawfulness of his exercise of the power to cancel Mr Fernando’s visa.

178               First, I infer from the communications that ensued between the Acting Minister’s staff and the departmental officers before 3 October 2003, that the Acting Minister was, on 3 October 2003, aware that in the view of the departmental officers it was desirable that a decision in respect of the cancellation of Mr Fernando’s visa be made prior to 5 October 2003, so that Mr Fernando could be taken into immigration detention immediately on his release from Acacia prison.

179               Secondly, I infer that on 3 October 2003, the Acting Minister knew that if the departmental stratagem was to take effect, he would have to make the decision that day, rather than adjourn the decision.  The Acting Minister knew that Mr Fernando was to be released on Sunday, 5 October 2003.  Further, he knew that his appointment as Acting Minister was due to expire on the next day, being a Saturday.  In those circumstances, the Acting Minister deliberately chose to make the decision, rather than adjourn the making of the decision until Mr Fernando’s submissions had arrived and had been considered.  He did this for the purpose of permitting the departmental officers’ stratagem to take effect.  In other words, he intended, by making the decision that day, that Mr Fernando would be detained on 5 October 2003, immediately on his release from Acacia prison.

180               Thirdly, the issues paper disclosed that Mr Fernando had been sent a notice of intention to cancel his visa, which invited him to make submissions in respect of the considerations which Mr Fernando felt “the Minister ought to be aware of and take into account”.  A copy of that notice was annexed to the issues paper.  The issues paper also disclosed that Mr Fernando had prepared such submissions and posted them to the Minister’s office in Canberra and that they contained more extensive information than was then before the department.  Further, the issues paper stated that Mr Fernando’s submissions had not yet been received by the department.

181               I infer, therefore, that the Acting Minister appreciated that the very object of seeking submissions from Mr Fernando was so he, as the decision-maker, would take them into account in making the decision whether to cancel Mr Fernando’s visa.

182               Fourthly, para 9 of the minute that was forwarded to the Acting Minister, referred specifically to the fact that less than a month earlier, Carr J had “quashed” the decision of Minister Ruddock on the basis of a failure to afford Mr Fernando procedural fairness, because Minister Ruddock had denied Mr Fernando an opportunity to comment upon the substance of the information material to the cancellation decision.  I infer from this fact that the Acting Minister on 3 October 2003, appreciated that an affected visa holder was entitled to have his or her comments on matters material to the making of a visa cancellation decision taken into account as part of the decision-making process.  I, also, infer that the Acting Minister appreciated that by not awaiting the arrival of Mr Fernando’s submissions before making the cancellation decision, he was thereby denying Mr Fernando the opportunity of having his comments on matters material to the cancellation decision considered as part of the decision-making process; and that the circumstances, therefore, were similar to those in which Minister Ruddock had unlawfully cancelled Mr Fernando’s visa without receiving his comments on information material to his cancellation decision.

183               Fifthly, I infer that the Acting Minister knew from reading para 9 of the minute that a visa cancellation decision made in circumstances where there had been a denial of procedural fairness, rendered that decision a nullity and liable to be “quashed”.

184               Sixthly, the Acting Minister chose not to give evidence, notwithstanding the allegations made against him.  I infer that had the Acting Minister given evidence, the evidence would not have assisted his case.

185               I find, therefore, that at the time that the Acting Minister made the cancellation decision on 3 October 2003, he knew Mr Fernando had not been afforded procedural fairness, that it was, therefore, beyond his power to cancel Mr Fernando’s visa, and that by making the cancellation decision in those circumstances he would be acting unlawfully.  Further, I find that with the knowledge of those matters, the Acting Minister proceeded to cancel Mr Fernando’s visa, rather than adjourn the making of that decision to await the arrival and consideration of Mr Fernando’s submissions.  I find that he proceeded to make the decision on that day for the very purpose of ensuring that Mr Fernando would be taken into immigration detention immediately on his release from Acacia prison on 5 October 2003, and with the intention that this should happen.

186               I observe that the respondents contended that in making the cancellation decision the Acting Minister acted consistently with reg 2.53 of the Migration Regulations 1994 (Cth).  That regulation was purportedly made pursuant to s 501D of the Migration Act.  In my view, this contention does not assist the Acting Minister.

187               First, there was no evidence that the Acting Minister’s attention was drawn to that regulation or that he relied upon it, in making the cancellation decision.

188               Secondly, reg 2.53 is not, in my view, germane to the issue.  Section 501D provides that regulations may be passed which provide that any information submitted in relation to whether a person passes the character test, must not be considered by the Minister unless it is submitted within the period, and in the manner ascertained in accordance with the regulation.

189               The terms of reg 2.53 do not in fact conform to the conditions prescribed in s 501D, the enabling provision, because that regulation does not state that the Minister must not consider the information unless it is submitted within the prescribed time and in the prescribed form.  All the regulation does, relevantly, is to state that information is to be provided within 14 days.

190               Further, and in any event, it is apparent from the formalities prescribed in reg 2.53(2) and reg 2.53(3) in relation to the provision of the information to the Minister, that the regulation is not intended to apply to submissions submitted by an affected visa holder as to why the Minister should exercise the discretion under s 501(2) not to cancel the affected visa holder’s visa.

191               Thirdly, it is apparent from the observations of Allsop J in Sales, referred to at [66] above, that reg 2.53 of the Migration Regulations does not define nor limit, the manner in which procedural fairness is to be afforded in relation to the making of a cancellation decision under s 501(2) of the Migration Act.

192               Accordingly, I find that the Acting Minister engaged in misfeasance in public office which caused Mr Fernando to be unlawfully detained for one day.  It follows, that the Acting Minister is liable to Mr Fernando for the sum of $3,000.00, being a concurrent liability to that in respect of the false imprisonment.

Associate:

Dated:         21 July 2010