FEDERAL COURT OF AUSTRALIA
Fernando v Commonwealth of Australia (No 3) [2010] FCA 1473
IN THE FEDERAL COURT OF AUSTRALIA | |
DATE OF ORDER: | |
WHERE MADE: |
THE COURT ORDERS THAT:
1. The applicant’s motion dated 20 September 2010 is dismissed.
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.
WESTERN AUSTRALIA DISTRICT REGISTRY | |
GENERAL DIVISION | WAD 111 of 2007 |
BETWEEN: | WANNAKUWATTEMITIWADUGE LLOYD NIRMALEEN FERNANDO BY HIS TUTOR JOHN ROBERT BRODERICK LEY Applicant
|
AND: | COMMONWEALTH OF AUSTRALIA First Respondent HONOURABLE GARY HARDGRAVE, FORMERLY ACTING MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS Second Respondent
|
JUDGE: | SIOPIS J |
DATE: | 22 SEPTEMBER 2010 |
PLACE: | PERTH |
REASONS FOR JUDGMENT
1 This is an application by the applicant, Mr Fernando by his tutor, to re-open his case. Mr Fernando contends that there were two findings by the Court that were erroneous and in respect of which he was not heard.
2 First, contended Mr Fernando, it was not open to the Court to find Mr Fernando had been unlawfully detained for a period of one day because Mr Fernando had pleaded that he had been falsely imprisoned for a period of three years, three months and 13 days; and the respondents neither pleaded, nor submitted at the trial, that if liability for false imprisonment was established, it should be for any lesser period than the three years, three months and 13 days.
3 In my view, that contention is to be rejected. It is the case that Mr Fernando claimed that he had been unlawfully detained for a period in excess of three years. However, in my view, this circumstance did not preclude the Court from finding that the detention was unlawful for any period up to the period pleaded, depending upon the circumstances which were proved at trial.
4 Further, at trial, the respondents ran their defence on the basis that there were two grounds upon which to justify the detention - one was by reference to the subjective knowledge of Ms Lorilee Lockhart, and the second was by reference to the subjective knowledge of the Australasian Correctional Management (ACM) personnel responsible for detaining Mr Fernando. Mr Fernando had the opportunity to meet these submissions at trial. Further, in my view, on the way in which the case was conducted at trial, it was open to the Court to come to the view that it did as to the period for which Mr Fernando’s detention was unlawful.
5 Mr Fernando’s second contention is that he had no opportunity to make submissions in relation to the finding that the persons responsible for detaining Mr Fernando after 6 October 2003, were officers for the purpose of s 189 of the Migration Act 1958 (Cth). In particular, Mr Fernando says that he did not have the opportunity to submit that the respondents did not prove that the persons who were responsible for detaining Mr Fernando, were persons who fulfilled the character and training requirements set out in the relevant Government Notice which provided for the authorisation of certain employees of ACM as officers for the purpose of the Migration Act.
6 The way that this matter arose during the trial was that counsel for Mr Fernando took the point that there was no evidence to show that the ACM personnel were officers within the meaning of s 189 of the Migration Act. Senior counsel for the respondents said that their status as such, arose from their appointment as officers by the Minister and that he sought leave to tender the relevant Government Notice evidencing their appointment, after the conclusion of the trial. There was no objection and the relevant Government Notice was duly put into evidence after trial.
7 Thereafter, no point was taken by Mr Fernando that the ACM supervisor at the Perth immigration detention centre, or anyone else, did not satisfy the character and training requirements which are referred to in the Government Notice. Accordingly, the issue was not brought to the attention of the Court as being an issue upon which it had to rule.
8 However, had the matter been brought to the attention of the Court as an issue upon which it had to rule, I would have drawn the inference that an ACM employee who held the position of supervisor of an immigration detention centre, was a person who met the character and training requirements by reason of the seniority and responsibility attendant upon appointment. In those circumstances, even if Mr Fernando’s contention was otherwise to be accepted, any reopening of his case to argue the point now sought to be argued, would be futile.
9 Accordingly, Mr Fernando’s application to re-open his case is dismissed.
I certify that the preceding nine (9) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Siopis. |
Associate:
