FEDERAL COURT OF AUSTRALIA

Okwume v Commonwealth of Australia [2016] FCA 1252

ORDERS

THE COURT ORDERS THAT:

1.    The application is allowed in part.

2.    The respondent is to pay the applicant $2,000.00 comprising $1,600.00 awarded as general damages and a sum of $400.00 in lieu of pre-judgment interest.

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

REASONS FOR JUDGMENT

CHARLESWORTH J:

1    The applicant, Mr Okwume, arrived in Australia at 7:00am on 21 July 2005 on a flight originating from Lagos. He carried with him a suitcase of belongings, some personal papers, a Business (Short Stay) Visa and a passport. He was, at that time, a citizen of the Federal Republic of Nigeria. His visa had been issued on 23 June 2005 and was due to expire one month from the date of his arrival.

2    Mr Okwume is a nurse. He travelled to Australia ostensibly for the purpose of attending an aged care conference in Brisbane. On his arrival at Brisbane International Airport, Mr Okwume was questioned by officers employed by the then-named Department of Immigration and Multicultural and Indigenous Affairs (Department). His dealings with the Department culminated in the cancellation of his visa under s 116(1)(d) of the Migration Act 1958 (Cth) (Act).

3    Immediately upon the cancellation of his visa, Mr Okwume was detained under s 189 of the Act. He spent the night of 21 July 2005 under guard in a motel. Then, on the following day, he was transferred to the Baxter Immigration Reception and Processing Centre (Baxter), situated near Port Augusta in South Australia. There he stayed until 5 April 2006 when he was granted a temporary protection visa. He was detained for a total of 259 days.

4    During the period of Mr Okwume’s detention a series of fires were lit by other detainees at Baxter. The compound in which Mr Okwume had been sleeping was razed.

5    Mr Okwume brings claims for damages founded in tort arising out of his initial detention, his continued detention and the fires at Baxter.

6    For the reasons that follow, Mr Okwume’s application should be allowed, although only in part.

CAUSES OF ACTION

7    There are three pleaded causes of action.

8    First, Mr Okwume alleges that the respondent is liable in the tort of false imprisonment in respect of his detention between 21 July 2005 and “10 May 2006”. His pleading introduces an allegation that certain officers owed to him a fiduciary duty, although that allegation is properly understood as forming a step toward his ultimate conclusion that he was falsely imprisoned. Neither the pleading, nor the course of the trial, nor the submissions made on Mr Okwume’s behalf elevated the fiduciary duty allegation to that of a separate cause of action sounding in damages in its own right. Indeed the alleged fiduciary relationship did not feature at trial at all.

9    Second, Mr Okwume alleges that an officer of the Department, Ms Michelle Grau, committed the tort of misfeasance in public office in relation to his continued detention from early November 2005 and that the respondent is vicariously liable for the actions of Ms Grau. Ms Grau was, at the relevant time, the Detention Review Manager for the Department in Brisbane. She is not joined personally as a respondent in the proceedings.

10    Third, Mr Okwume brings a claim founded in negligence in relation to the fires at Baxter which, he claims, caused him to suffer psychiatric injury and loss of property. The claim is founded on an allegation that the respondent owed to him a duty to “ensure his personal safety and that of his possessions” whilst he was detained at Baxter. That duty is alleged to have been breached by the respondent’s failure to, among other things, ensure that the compound in which Mr Okwume resided was constructed in such a fashion so as to reduce the severity of fires such as those lit by other detainees at Baxter on 12 November 2005. The pleaded case is that, as a result of the fires, Mr Okwume suffered an aggravation of a psychiatric illness in the nature of post-traumatic stress disorder, although, as will be seen, the case at trial alleged that the fires were in fact the precipitating cause of the alleged condition. Mr Okwume also claims to have lost personal property as a result of the fires, the value of which is not pleaded.

11    The claim founded in negligence is brought independently of the claims founded in false imprisonment and misfeasance in public office. Mr Okwume does not make a discrete claim to have suffered psychiatric injury or property loss by virtue of his detention per se.

SUMMARY OF judgment

12    I give separate consideration to each of the three causes of action in [103] – [203], [204] – [231] and [238] – [278] respectively.

13    I have determined that Mr Okwume’s claim founded in false imprisonment should be allowed in part, by reason of him having been detained without lawful justification for a period between 2:55pm on 21 July 2005 and about 8:15am on 22 July 2005. I have assessed general damages in the amount of $2,000.00 inclusive of a sum in lieu of pre-judgment interest. I reject Mr Okwume’s plea that an award of exemplary damages is justified in all of the circumstances.

14    Mr Okwume’s claim to have been falsely imprisoned in any subsequent period is not established.

15    I have rejected Mr Okwume’s claim founded in the tort of misfeasance in public office for two reasons. First, the elements of the tort are not made out in connection with the acts and omissions of Ms Grau. Second, Mr Okwume has failed to establish the factual foundation necessary to establish vicarious liability on the part of the Crown in right of the Commonwealth in relation to the tort alleged against Ms Grau in any event.

16    Mr Okwume’s claim founded in negligence in respect of the fires at Baxter must also fail on several bases. Mr Okwume did not establish at trial that the respondent owed a duty to “ensure” his personal safety and that of his possessions. Even on the alternate basis that the respondent owed a duty to exercise reasonable care, Mr Okwume has not proven to the requisite standard that the respondent breached that duty, nor has he established to the requisite standard that any such breach caused him to suffer the pleaded harm.

Jurisdiction

17    Before proceeding further, I make the following observations about this Court’s jurisdiction to determine Mr Okwume’s claims.

18    The action has a laborious procedural history, the trial having commenced nearly 11 years after the events in issue and nearly seven years after the proceedings were first instituted.

19    The action was first commenced by summons in the District Court of South Australia on 18 July 2008. From there, it was removed to the Supreme Court of South Australia and then transferred, by consent, to this Court on 10 March 2015. It appears that the matter was transferred after the respondent contended that s 484 of the Act excluded the Supreme Court’s jurisdiction “in relation to a migration decision”.

20    The original jurisdiction of this Court “in relation to a migration decision” is limited by s 476A of the Act. It relevantly provides:

476A Limited jurisdiction of the Federal Court

(1)    Despite any other law, including section 39B of the Judiciary Act 1903 and section 8 of the Administrative Decisions (Judicial Review) Act 1977, the Federal Court has original jurisdiction in relation to a migration decision if, and only if:

(a)    the Federal Circuit Court transfers a proceeding pending in that court in relation to the decision to the Federal Court under section 39 of the Federal Circuit Court of Australia Act 1999; or

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

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

(d)    the Federal Court has jurisdiction in relation to the decision under subsection 44(3) or 45(2) of the Administrative Appeals Tribunal Act 1975.

…

(2)    Where the Federal Court has jurisdiction in relation to a migration decision under paragraph (1)(a), (b) or (c), that jurisdiction is the same as the jurisdiction of the High Court under paragraph 75(v) of the Constitution.

…

21    This action was commenced after s 476A came into effect and is subject to its application: Migration Litigation Reform Act 2005 (Cth), cl 41 of Sch 1. I am satisfied that each of the administrative acts or decisions that resulted in the applicant’s original and continued detention was a “migration decision” as that phrase is defined in s 5 of the Act. The relevant acts do not fall within the original jurisdiction conferred on this Court under subss 476A(1)(a) to (d).

22    In Fernando v Minister for Immigration and Citizenship (2007) 165 FCR 471 (Fernando), Siopis J determined an objection to competency to a claim by Mr Fernando for damages in the tort of false imprisonment arising from his detention under the Act. In that case, prior to commencing proceedings in this Court, Mr Fernando had succeeded on an application for judicial review of the decision to cancel his visa and the visa cancellation decision had been quashed in that earlier action. Although no occasion arose in the proceedings for Siopis J to decide upon the validity of the decision to cancel Mr Fernando’s visa, the validity of the exercise of the power of arresting officers to detain Mr Fernando under the Act was sought to be challenged. The act of detention itself fell within the description of a “migration decision” within the meaning of s 476A of the Act. The objection to competency was nonetheless dismissed.

23    Siopis J held (at [22]) that “s 476A(1) of the Act is to be read as if the words ‘an application for judicial review of’, were inserted between the words ‘in relation to’ and ‘a migration decision’”. His Honour further held that the Federal Court otherwise had original jurisdiction, conferred by s 39B(1A) of the Judiciary Act 1903 (Cth) (Judiciary Act), to hear and determine a claim for damages for the tort of false imprisonment arising from detention under the Act, because the powers alleged by the respondent to have been relied upon to justify the applicant’s detention owed their existence to a law of the Parliament. The question of whether or not a matter arises under such a law does not depend upon the form of the relief sought: LNC Industries Limited v BMW (Australia) Limited (1983) 151 CLR 575 at 581 (Gibbs CJ, Mason, Wilson, Brennan, Deane and Dawson JJ). It is sufficient that a party relies upon a right, immunity or defence arising under the Act: cf Agtrack (NT) Pty Ltd v Hatfield (2005) 223 CLR 251 at [32] (Gleeson CJ, McHugh, Gummow, Hayne and Heydon JJ). Such was the case in Fernando, as it is here.

24    The circumstances in Fernando differ from those of the present case in that the decision to cancel Mr Fernando’s visa was quashed by a court of competent jurisdiction prior to the commencement of his claim founded in the tort of false imprisonment. The invalidity of that decision had already been judicially determined.

25    In Tang v Minister for Immigration and Citizenship (2013) 217 FCR 55 (Tang) the Full Court of this Court held (at [7]) that the expression “in relation to a migration decision” in Div 2 of Pt 8 of the Act (where s 476A resides) does not include collateral challenges to an underlying migration decision “such as might occur in a case alleging false imprisonment”. Although Tang concerned the proper interpretation of s 486A of the Act, the reasoning is apposite in the present context. See also Bodruddaza v Minister for Immigration and Multicultural Affairs (2007) 228 CLR 651 at [21] – [22]. In such cases, the legality of an administrative decision may be determined collaterally other than in the exercise of jurisdiction equivalent to that conferred on the High Court under s 75(v) of the Constitution or that conferred on this Court under s 39B of the Judiciary Act.

26    In Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597 (Bhardwaj) the High Court considered the status of a decision affected by jurisdictional error in circumstances where no court proceedings had been commenced to have the decision set aside. Gaudron and Gummow JJ held that such a decision is properly to be regarded, in law, as no decision at all. Their Honours said (at [51]):

There is, in our view, no reason in principle why the general law should treat administrative decisions involving jurisdictional error as binding or having legal effect unless and until set aside. A decision that involves jurisdictional error is a decision that lacks legal foundation and is properly regarded, in law, as no decision at all. Further, there is a certain illogicality in the notion that, although a decision involves jurisdictional error, the law requires that, until the decision is set aside, the rights of the individual to whom the decision relates are or, perhaps, are deemed to be other than is recognised by the law that will be applied if and when the decision is challenged. A fortiori in a case in which the decision in question exceeds constitutional power or infringes a constitutional prohibition.

(footnote omitted)

27    McHugh J agreed (at [63]). The reasoning of Hayne J was to relevantly similar effect (at [151] — [153]).

28    It follows from the principles stated in Bhardwaj, Tang, and Fernando that Mr Okwume may bring an action in this Court involving a collateral challenge to the validity of decisions made or purportedly made under the Act, notwithstanding the limitations imposed by s 476A of the Act on this Court’s original jurisdiction in relation to migration decisions. Where any part of Mr Okwume’s claim depends for its success on the invalidity of an administrative decision made or purportedly made under the Act, it must be demonstrated that the decision is affected by jurisdictional error in the sense described in Bhardwaj.

29    Mr Okwume’s claim founded in misfeasance in public office is properly to be regarded as falling within the jurisdiction conferred by s 39B(1A)(c) of the Judiciary Act. That aspect of the matter also arises under a law of the Parliament. The claim would, in any event, fall within the Court’s associated or accrued jurisdiction, as does the claim founded in negligence: see s 19 and s 32 of the Federal Court of Australia Act 1976 (Cth) (FC Act). The jurisdiction of the Court having been properly invoked, the whole of the matter falls to be determined in the exercise of federal jurisdiction. The applicable law is that identified by the application of s 79 and s 80 of the Judiciary Act.

THE PROVEN FACTS

30    In the narrative that follows I refer at times to persons who I describe as officers of the Department. Those references should be understood to mean persons who satisfy the broad definition of “officer” in s 5(1) of the Act. Officers who worked in the Department at the relevant time were employed under the Public Service Act 1999 (Cth). They were subject to the direction of the Secretary of the Department who, in turn, advised the Minister for Immigration and Multicultural and Indigenous Affairs (Minister) in relation to the administration of the Department and the Act.

31    With the exception of the claim founded in the tort of misfeasance in public office, the respondent acknowledges that, as a general proposition, it is vicariously liable for torts committed by officers of the Department.

32    The respondent bore the onus of establishing that Mr Okwume’s detention was lawfully justified. The primary contention of the respondent is that Mr Okwume’s detention was at all times lawfully justified under s 189 of the Act irrespective of the validity of the decision to cancel his visa on 21 July 2005. Notwithstanding that, it is necessary to consider the whole of the factual circumstances surrounding the cancellation of Mr Okwume’s visa and all of the circumstances surrounding his subsequent detention and continued detention. That is because the relevant power to detain Mr Okwume could only be exercised by an officer who reasonably suspected that Mr Okwume was an unlawful non-citizen, as that phrase is defined in the Act. I elaborate on the applicable principles below.

33    Given the passage of time between Mr Okwume’s detention and the trial of this action, it is not surprising that witnesses called by the respondent professed to have little or no independent recollection of the critical events. For the most part, the respondent’s witnesses could add little to the events as may be evidenced by Departmental records. The witnesses were, again for the most part, in no position to give evidence from their own independent recollection capable of rebutting any negative inferences that might arise from those written materials.

34    Mr Okwume’s evidence was also characterised in part by an inability to independently and reliably recall past events at the time of trial, particularly in relation to his subjective experience of the fires at Baxter. In the result, however, very little turns on factual questions affected by Mr Okwume’s reliability or credibility as a witness at trial.

The events of 21 and 22 July 2005

35    When Mr Okwume arrived at Brisbane International Airport he presented himself to an officer of the Department who stamped his passport.

36    Whilst in the baggage collection area, Mr Okwume was pulled aside by a Customs official on an “intuitive” basis. After checking Mr Okwume’s bags, the Customs official contacted the Department’s Duty Manager at Brisbane International Airport, Ms Kay O’Connell. At about 8:55am the Customs official gave Mr Okwume’s passport to Ms O’Connell, who examined it. Ms O’Connell did not identify any obvious signs that the passport had been forged or otherwise altered.

37    Ms O’Connell also considered professional registration documents in Mr Okwume’s possession. On the basis of those documents, she concluded that Mr Okwume appeared to be a “genuine nurse”. She nonetheless decided that Mr Okwume should be counselled about his visa conditions and the consequences of overstaying in Australia beyond its expiry date of 21 August 2005.

38    Mr Glen Andersson was, on that day, an Immigration Inspector stationed at Brisbane International Airport. He is a person to whom the Minister has delegated certain decision-making powers under the Act: see s 496(1). Mr Andersson is the officer who made the decision to cancel Mr Okwume’s visa under s 116(1)(d) of the Act in his capacity as the Minister’s delegate. He was the author of a document titled “Immigration Inspector’s Report”, with the exception of one entry which, I find, was later added by Ms O’Connell. I otherwise find that the document is, for the most part, a running sheet authored by Mr Andersson on 21 July 2005 at or around the time that the events on that day unfolded, notwithstanding that it is dated 29 July 2005. I will refer to that document as the Running Sheet.

39    Ms O’Connell was not called to give evidence and, at the time of trial, Mr Andersson had no independent recollection of the events that occurred on 21 July 2005. My findings of fact in connection with their actions on that day are derived largely from Departmental records.

40    At Ms O’Connell’s direction, Mr Andersson went to the baggage collection area at 9:15am to counsel Mr Okwume about the consequences of overstaying his visa. Mr Okwume asked Mr Andersson whether he was from the Department. When Mr Andersson confirmed that he was, Mr Okwume said words to the effect that he did not want to return to Nigeria as he feared that he would be persecuted and killed there. Mr Andersson then contacted Ms O’Connell by radio. Ms O’Connell told Mr Andersson to take Mr Okwume to the Department’s interview area within the airport. Mr Okwume was placed in an interview room at 9:30am. Ms O’Connell cautioned him and obtained his consent to have an interview video recorded. No video recording of the subsequent events was adduced in evidence at trial.

41    At about the same time, Mr Okwume’s passport was provided to a document examiner stationed at Brisbane International Airport, Mr Benjamin Kriss. Mr Kriss had commenced employment with the Department in 1998. He underwent three years of in-house training, after which he was assigned the title Forensic Document Examiner. In his affidavit, Mr Kriss self-described his forensic examination capabilities as “highly refined”. He, too, professed in his affidavit and (at least initially) in his oral evidence to have no independent recollection of his involvement in the events affecting Mr Okwume on 21 July 2005.

42    Mr Andersson observed Mr Kriss examining Mr Okwume’s passport. He remained with Mr Kriss for a time not exceeding half an hour. During that time, Mr Kriss commented that some features of the document were “leading him to believe” that the document may be “bogus”. The concerns expressed by Mr Kriss whilst in the company of Mr Andersson related to the method of printing of Mr Okwume’s signature, and the method of producing the word “Nigeria” over the photograph. At this point in the examination process, Mr Andersson was told by Ms O’Connell that he should commence what was referred to as a screening interview with Mr Okwume. That interview commenced at about 10:10am and concluded at 11:20am. At the time that the interview commenced, Mr Andersson knew that the process of examining Mr Okwume’s passport was not yet complete.

43    Mr Kriss undertook an examination of Mr Okwume’s passport over a period of about two hours. He ultimately formed an opinion that the passport had been tampered with because it had, in his opinion, a “counterfeit laminate”. He confirmed that opinion in a typewritten report that he prepared and circulated on the following day. It is admitted on the pleadings that, in forming his opinion, Mr Kriss did not:

(1)    take into account any other documents Mr Okwume had in his possession;

(2)    ask Mr Okwume to provide a specimen of his signature for the purpose of comparison with the signature on the passport;

(3)    take into account that two other officers of the Department had not suspected the passport to be counterfeit;

(4)    make contact with the person who Mr Okwume had specified on his visa as being his contact point in Australia or any other person who might have confirmed that Mr Okwume had in fact arranged to attend an aged care conference in Brisbane;

(5)    take into account that the Australian High Commission in Pretoria had seen Mr Okwume’s passport and accepted the document for the purposes of granting Mr Okwume a visa;

(6)    take into account the consequences that might befall Mr Okwume in the event that his visa was incorrectly cancelled.

44    I am not presently concerned with the question of whether there was any obligation under the Act imposed on any person to consider any of these matters.

45    It is necessary at this juncture to make some findings and to express some comments about the methodology used by Mr Kriss in forming his opinion.

46    Mr Kriss compared Mr Okwume’s passport with a specimen passport provided to the Department by the Federal Republic of Nigeria bearing the date 23 January 1998. As acknowledged by Mr Kriss, the specimen passport was a critical document in his examination process. I accept that the specimen document is not a passport issued in respect of any particular person. It is more properly described as a sample provided by authorities in Nigeria to the Department to enable its document examiners to identify the features of a genuine Nigerian passport for comparison purposes.

47    The physical properties of a passport include features that are inherent in the manufacturing process and features that are created by the authority issuing the passport to an applicant. The manufactured document is known as the base document. The base document contains security features, including a laminate coating embossed with a fine pattern resembling a finger print.

48    An authority that issues passports to passport applicants is known as an issuing authority. An issuing authority adds additional features to the base document, such as printed words and images specific to the passport applicant’s identity.

49    Both manufacturing processes and issuing practices may change over time. In addition, issuing authorities may also commit faults when dealing with a base document.

50    At the relevant time, the practice of document examiners within the Department initially involved the identification of the differences between the passport under examination and the specimen passport. The differences are referred to as “observations”. Next, the document examiner lists the alternative possible explanations that might be given for the differences that have been observed. The possible explanations are referred to as “inferences”.

51    Mr Kriss explained that if there existed a difference between the features of a person’s passport and that of a specimen passport, the difference could well be explained by a change in issuing practices or a change in manufacturing practices since the creation of the specimen document or the difference might also be explained by fraud. These alternative “inferences” are regarded by the document examiner as a list of hypotheses to be explored, rather than as conclusions drawn by way of inference, as the word might otherwise suggest.

52    Next, the examiner performs research to explore whether the available inferences are soundly based and notes the results of the research. A conclusion may then be reached by excluding inferences until only one of the inferences remains to be drawn.

53    As I have said, Mr Kriss ultimately concluded that the laminate on Mr Okwume’s passport was “counterfeit”. The conclusion was expressed with certainty rather than in terms of a suspicion. He reached that conclusion by first observing that the printing on the laminate was “irregular” in comparison with the specimen and that there were differences in the relief pattern on the laminate, also in comparison with the specimen. In the course of his examination, he noted those differences might well be explained by a “change in manufacturing process”.

54    When cross-examined about his method of comparing Mr Okwume’s passport with a specimen that had apparently been issued seven years prior, Mr Kriss could point to no established system by which the Department ensured that the specimen passport used for comparison purposes was the most recent model of passport manufactured in and issued from Nigeria. As to whether Mr Kriss personally made enquiries on 21 July 2005 to determine whether there had been any change in the manufacturing processes or issuing practices since he first obtained the comparator passport, Mr Kriss acknowledged that he had not. The acknowledgement was not readily forthcoming. His evidence under cross-examination on the topic began with the following exchange:

COUNSEL:    You didn’t take any steps to ensure you were using an up-to-date comparator passport, did you?

MR KRISS:    I - I didn’t see that it was - sorry. Can you please repeat the question?

COUNSEL:    Yes or no. Yes or no, Mr Kriss. Did you - did you make any effort to get an up-to-date comparator passport or not?

MR KRISS:    I don’t recall if I made effort to - to obtain an - a more up-to-date passport.

55    In giving those responses, I found Mr Kriss’ demeanour to be both evasive and defensive. He gave evidence to the effect that it was not important if the comparator passport was out of date because it was not the only document he had relied upon in forming his conclusion that the laminate on Mr Okwume’s passport was counterfeit. However, he did not adequately explain how the additional information bore on the formation of his opinion. The foundation of his opinion was that the laminate on Mr Okwume’s passport differed from that on the comparator. He did not give any evidence to the effect that any additional information he had relied upon confirmed one way or the other whether that difference might be explained by a change in the manufacturing processes or issuing practices for Nigerian passports. His cross-examination on the topic concluded as follows:

COUNSEL:    Now, you didn’t make adequate investigation, did you, as to whether there were manufacturing or issuing changes in Nigerian passports between your specimen passport and the date of Mr Okwume’s passport that could account for the variations and the propositions that you raise as to the difference in Mr Okwume’s passport from the specimen that you’ve given us. You did not make adequate inquiry, did you?

MR KRISS:    I disagree. In the timeframe that I have ..... Exhaust all avenues that were – were available to me.

…

COUNSEL:    You didn’t make any inquiries with Nigerian authorities while you were performing this comparison as to whether …

MR KRISS:    No.

COUNSEL:    … there had been any changes in their issuing process?

MR KRISS:    No, I haven’t made any inquiries with Nigerian Government.

COUNSEL:    You did not then in that period of …?

MR KRISS:    That is correct, yes.

COUNSEL:     21 July. Yes?

MR KRISS:    That is correct.

56    In performing the examination, Mr Kriss also referred to a database known as Edison. The contemporaneous reports made by Mr Kriss make no mention of him referring to Edison for the purpose of either accessing a more up-to-date specimen passport, or even for the purpose of checking whether a more up-to-date specimen passport had been issued. Had Mr Kriss used Edison for that specific purpose he could reasonably have been expected to have made reference in his notes and reports to having done so. His responses in cross-examination also indicated that he had not used Edison for that particular purpose. His demeanour suggested that he had been caught off guard by questions concerning the longevity of the specimen.

57    It is notable that Mr Kriss initially made an observation that the word “deliverance” on Mr Okwume’s passport was “misspelt” as “délivrance”. He noted that the difference in spelling could be explained by “fraud or issuance fault”. However, he did not proceed to find that the passport was false on that basis because he obtained additional information to the effect that (to adopt his words) “the spelling mistake can appear in genuine passports”. The explanation for the change in spelling did not cause Mr Kriss to make further enquiries to establish whether the specimen passport relied upon by him might well be outdated, and therefore, an unreliable comparator.

58    Under re-examination, Mr Kriss then offered explanations in support of his opinion in such a way that was inconsistent with his affidavit evidence. He deposed in his affidavit to being unable to recall anything about the particular circumstances of Mr Okwume’s case. He had his contemporaneous notes before him at the time of swearing his affidavit, and yet those documents did not refresh his memory at the time of swearing it. I particularly reject as unreliable Mr Kriss’ oral evidence in re-examination to the extent that he professed to have an independent recollection of having before him, on 21 July 2005, a document alert issued by Canadian authorities giving particulars of a fraudulent Nigerian passport that had been presented to the Canadian High Commission to Pretoria. I reject that evidence for the reason that the document was an obvious document to have referred to in both his handwritten notes and in the typewritten report that Mr Kriss prepared on the following day. There is no reference to the alert in those materials. Further, it was not established on the evidence that anomalies in the laminate to which the Canadian alert referred were the same kind of anomalies that Mr Kriss had identified on Mr Okwume’s passport.

59    It may be inferred from the facts that follow that Mr Kriss informed Ms O’Connell of his opinion concerning Mr Okwume’s passport not before 11:20am and not after 11:45am on 21 July 2005.

60    Following the screening interview, Mr Andersson again contacted Ms O’Connell. This occurred at about 11:20am. He expressed the view that it may be appropriate to cancel Mr Okwume’s visa under s 116(1)(a) of the Act because “the circumstances permitting the grant of the visa no longer existed”. It is apparent that Mr Andersson’s focus at this time was on the statutory consequence of Mr Okwume making a claim for asylum immediately upon arrival in Australia, in circumstances where he had obtained a short stay visa ostensibly for the purpose of attending an aged care conference. Mr Andersson had formed the view that Mr Okwume had used the conference as a ruse in order to obtain a protection visa. There was some dispute at trial as to whether Mr Okwume had himself used the word “ruse”, but it is not necessary for me to decide that question.

61    The Running Sheet states:

AT 1120HRS DM CONSULTED. I ADVISED THAT AS PAX PRIMARY PURPOSE IN TRAVELLING TO A/A WAS TO ENGAGE AUSTRALIA’S PROTECTION OBLIGATIONS, THE CIRCUMSTANCES PERMITTING THE GRANT OF THE VISA NO LONGER EXISTED AND THAT S116 (1) (A) MAY BE AN APPROPRIATE SECTION OF THE MA TO CONSIDER VISA CANCELLATION UNDER. DM AGREED AND ASKED IF I HAD TAKEN PAX INTO S192 DETENTION PER NEW AIRPORT POLICY. I ADVISED THAT I HAD NOT BUT WOULD DO SO ASAP.

(original formatting retained)

62    The reference in that entry to “S192 DETENTION” may be taken to be a reference to detention pursuant to s 192(1) of the Act, which provides that where an officer knows or reasonably suspects that a non-citizen holds a visa that may be cancelled under, relevantly, Subdiv D of Div 3 of the Act, the officer may detain the non-citizen for questioning. I infer from that entry that Mr Andersson did in fact inform Mr Okwume shortly after 11:20am on 21 July 2005 that he was detained pursuant to s 192 of the Act.

63    The Running Sheet then includes the following statements:

1145HRS DM ADVISED THAT IT WAS UNNECESSARY TO CANCEL PAX VISA AS HE DID NOT MEET S166 REQUIREMENTS DUE TO HIS PRESENTING A BOGUS DOC.

AT 1225 HOURS ON ADVICE FROM DM PAX WAS DETAINED IN S189 DETENTION AS HE DID NOT MEET S166 REQUIREMENTS AS HE DID NOT PRESENT A VALID PASSPORT IN CLEARANCE.

(original formatting retained)

64    The reference to “DM” in that statement is a reference to Ms O’Connell. The reference to “PAX” is a reference to Mr Okwume. The reference to “s 166 requirements” is a reference to the requirements that must be satisfied before the person can be “immigration cleared” for the purposes of the Act and then leave the port of their arrival (here Brisbane International Airport) and enter Australia: see s 172 of the Act.

65    I infer from the Running Sheet that Mr Okwume was in fact told that he was detained at 12:25pm purportedly under s 189 of the Act on the basis that he “did not meet s 166 requirements”, notwithstanding that his visa had not been cancelled at that time. Upon being informed of the decision to detain him, Mr Okwume became agitated and upset. At 12:30pm, that is, after he had been told that he was detained pursuant to s 189 of the Act, Mr Okwume asked to speak to a lawyer. At 12:40pm he changed his mind. He asked, instead, to speak to a priest.

66    At 1:00pm Ms O’Connell sent a facsimile to GSL (Australia) Pty Ltd (GSL). At the relevant time, GSL provided services to the Department in relation to the detention of persons under the Act. The facsimile was directed to the attention of the Detention Services General Manager at Villawood Immigration Detention Centre, being a detention centre operated by GSL. The facsimile is titled “Request for Services Form”. The facsimile stated “You are requested to detain the following person on the basis that they are an unlawful non-citizen”. It requested that GSL personnel attend at the airport to keep Mr Okwume under “static guard”. That facsimile further supports the inference that Mr Okwume was in fact detained at around 12:25pm, purportedly under s 189 of the Act because of Ms O’Connell’s conclusion that he had not met the requirements of s 166 of the Act. As I have said, at that time Mr Okwume’s visa had not been cancelled.

67    The Running Sheet continues:

LEGAL ADVICE DATED 2003 WAS SUBSEQUENTLY PROVIDED BY ANOTHER INSPECTOR TO DM WHICH INDICATED THEY NEED TO PROCEED WITH VISA CANCELLATION IN THIS CASE. DM REQUESTS THAT WHEN PAX CALMS DOWN, I PURSUE CANCELLATION PROCEDURES UNDER S116 (1) (D) MA.

(original formatting retained)

68    The reference to “legal advice dated 2003” is a reference to advice that had been provided to the Department some two years previously. The advice was brought to Ms O’Connell’s attention after she had directed that Mr Okwume be detained and after she had requested GSL personnel to attend at the airport to keep him under guard. In its application to Mr Okwume’s case, the effect of the advice was that Mr Okwume could not be detained under s 189 by virtue of his non-compliance with the requirements of s 166 of the Act. Having considered the advice, Ms O’Connell then “requested” Mr Andersson to “pursue cancellation procedures” under s 116(1)(d) of the Act which, it will be seen, relates to the provision of a “bogus” document by a person to an officer of the Department. Mr Andersson’s phrase “the need to proceed with visa cancellation” supports an inference that he was, at that time, acting out of a perceived need to act consistently with others who had already determined that Mr Okwume’s detention could not be justified unless his visa was cancelled first. The Running Sheet goes on:

AT 1435 HRS I INFORMED PAX THAT FROM THE EVIDENCE AVAILABLE THAT THERE MAY BE GROUNDS FOR CANCELLATION OF HIS VISA UNDER S116 (1) (D) – S103 BOGUS DOCUMENT GIVEN.

FOR THE FOLLOWING REASONS:

PAX PRESENTED BOGUS NIGERIAN PASSPORT … ON ENTRY …

(original formatting retained)

69    Mr Andersson served Mr Okwume with a document titled “Notice of Intention to Consider Cancellation under section 116 of the Migration Act 1958” (Notice of Intention). The document is comprised of three parts, titled Part A, Part B and Part C. It is a standard form apparently designed for officers of the Department to record events and decisions by ticking and completing boxes.

70    Part A is indeed a Notice of Intention to Consider Cancelling a Visa issued to Mr Okwume. Section 2 of that part is titled “Possible grounds for cancellation”. In that section, Mr Andersson has written “You have presented a bogus document at Brisbane Airport on 21.7.05”. No further particulars are given. The form then states that Mr Okwume would be given 10 minutes from the commencement of an interview scheduled to begin at 2:35pm to comment. Section 6 of the form is titled “Visa holder’s signature to verify that notice has been received”. Mr Okwume’s signature appears in that section above the date 21 July 2005 and the time 2:35pm.

71    Part B of the form is titled “Record of Decision whether to Cancel Visa”. Section 7 is titled “Visa holder’s response”. It indicates that Mr Okwume was in fact provided with the Notice of Intention at 2:48pm on 21 July 2005. The standard form prompts the decision-maker to “Provide a summary of the reasons the visa holder considers the ground [sic] for cancellation DO NOT exist”. Mr Andersson has completed that section with the words “Pax advises the passport is not false, and that it was legitimately obtained from Nigerian government”. The standard form then prompts the decision-maker to “Provide a summary of the reasons the visa holder gave why their visa should not be cancelled”. Mr Andersson has completed that section with the words “Does not matter as long as protection claims are heard”. Mr Andersson ticked boxes on the form, selecting fields to the effect that he considered that there were grounds for cancelling Mr Okwume's visa under s 116(1)(d) of the Act. Section 9 on the form is titled “Evidence of and reasons why grounds for cancellation do or do not exist”. In that field, Mr Andersson states “Brisbane Airport document examiner advises pax entered Australia on bogus document”.

72    Mr Andersson then proceeded to make the decision to cancel Mr Okwume’s visa. He records the reasons for the decision within Part C of the form, which is titled “Notification of Decision to Cancel visa under s116 of the Migration Act 1958”. He records that Mr Okwume’s claimed purpose of travel to stay in Australia was to escape persecution in Nigeria. When prompted by the form to state the degree of hardship which may be caused to the visa holder, their family members or others if the visa was to be cancelled, Mr Andersson states: “won’t suffer hardship as regardless protection claims will be heard”. I am satisfied that the words there used by Mr Andersson are words to the effect used by Mr Okwume. The contemporaneous Running Sheet compiled by Mr Andersson supports that finding. However, I am also satisfied that at the time that Mr Okwume said that he would not suffer hardship as a consequence of his visa being cancelled, he had already been told that he was detained pursuant to s 189 of the Act. I am satisfied that it was never explained to Mr Okwume that his detention under s 189 of the Act some three hours earlier was not legally justified, and that the cancellation of Mr Okwume’s visa would have the effect that his detention under s 189 of the Act would not only be lawfully permitted, but mandated. Mr Okwume’s response to the “degree of hardship” is to be understood in that context.

73    Mr Andersson concludes with the statement “I have taken into account the pax response to the notice of intention to cancel his visa and on balance have decided to cancel his visa”. He records his decision as having been made at 2:55pm. At the same time, Mr Andersson informed Mr Okwume that he was detained under s 189 of the Act as an unlawful non-citizen.

74    In deciding to cancel the visa, Mr Andersson did not ask Mr Okwume to provide a specimen of his signature, nor did he make contact with persons who might have verified that Mr Okwume was scheduled to attend the aged care conference in Brisbane. Mr Andersson did, however, take into account the fact that Mr Okwume had made a claim to be a refugee.

75    At 3:00pm Mr Okwume asked to speak with a lawyer. He was referred to a lawyer by a service named the Refugee Complaints Support Centre and he spoke to the lawyer by telephone.

76    At some time on 21 July 2005, after the cancellation of Mr Okwume’s visa, Ms O’Connell prepared and signed a document titled “FILE NOTE RE Livenus OKWUME DOB: 1.5.63” (File Note). The File Note contains the following statements (original spelling and grammar retained):

At the end of the screening interview Mr Okwume was advised that he did not meet s166 requirements as he did not present a valid passport for clearance. (Document Examiner, Ben Kriss had identified anomalies with the passport and assessed that it was not a genuinely issued passport). Mr Okwume was subsequently advised that as he did not meet S166 requirements he was not lawful and therefore subject to detention under S189.

However, it came to my attention after the interview that a legal opinion received via Airports Policy Section on 8.12.2003 stated that ‘doubts about the validity of a passport have no effect on a person’s compliance with s166 of the Act … and that … a person who comes to notice in immigration clearance holding a bogus or otherwise invalid passport, visa, or whose visa application contained false information is that the persons visa should be cancelled under s116(1)(d).

To confirm this legal advice I telephone Jamal Houssami, Character and Cancellation Section, CO who also advised that the in these circumstances the visa should be cancelled under s116(1)(d).

I subsequently, advised the Borders Manager, Doug Callaghan of the situation and we determined that we would proceed with the cancellation of the visa as a separate decision to the initial decision of Mr Okwumi not meeting s166 requirements.

As such Mr Okwuma was then taken through the visa cancellation process under s116 ie. he was served the NOIC and advised of the grounds for the intent to cancel his visa, provided 10 mins for his response and then the decision to cancel his visa was made.

77    That file note, read together with the Running Sheet, supports an inference that Ms O’Connell (together with another officer of the Department named Mr Doug Callaghan) had formed the view that Mr Okwume’s visa “should be cancelled under s 116(1)(d)” and that their conclusions in that regard were communicated to Mr Andersson in those same terms. The same file note also contains statements to the effect that it was Ms O’Connell and not Mr Andersson who conducted the initial interview with Mr Okwume in relation to his protection claim. That is inconsistent with the record of interview which names Mr Andersson as the interviewer. That anomaly remains unresolved.

78    Mr Andersson prepared a report titled “Detention Report”, which included a statement to the effect that Mr Okwume’s visa had been cancelled pursuant to s 116(1)(d) of the Act. The Detention Report was emailed to a number of recipients, including Ms O’Connell, Ms Grau and another Duty Manager working at Brisbane International Airport on that day, Ms Lynette Trad. Ms Trad received the Detention Report by email at 5:39pm.

79    At 5:15pm Ms O’Connell sent another facsimile to GSL, again directed to the attention of the Detention Services General Manager of the Villawood Immigration Detention Facility. By that facsimile, Ms O’Connell requested that Mr Okwume be collected from the airport and held in detention at a nearby motel (ingloriously named Airport 85 Motel) until arrangements had been made for his transfer to Baxter. Mr Okwume departed the airport in the custody of GSL personnel at around 5:45pm.

80    By 6:10pm, Mr Callaghan had booked a flight to convey Mr Okwume from Brisbane to Adelaide, scheduled to depart at 8:15am the following day.

81    At about 8:00pm, Ms Trad sent a facsimile to GSL. She directed GSL personnel to accompany Mr Okwume on a domestic flight on 22 July 2005 from Brisbane to Adelaide and, from there, into the custody of the Manager of Baxter. It may be inferred that Mr Okwume departed Brisbane in the custody of GSL personnel, acting under the instructions of Ms Trad, at the scheduled time of 8:15am on 22 July 2005.

82    The communications from Ms O’Connell and Ms Trad to GSL personnel each contained a statement to the effect that Mr Okwume was, or was known to be, or reasonably suspected to be, an unlawful non-citizen. It may be readily inferred that the GSL personnel who physically restrained Mr Okwume and transferred him to Baxter and thereafter held him in detention had read and acted upon those statements. Mr Okwume did not submit at trial that there was any reason to question the bona fides of the relevant GSL personnel.

The events of August to November 2005

83    From at least 25 July 2005 Mr Okwume had engaged the services of a solicitor to assist him with the preparation of his application for a protection visa. He eventually made an application for a protection visa, under the cover of a letter from his lawyer, which was received by the Department on 18 August 2005. Between September 2005 and February 2006 Mr Okwume’s lawyer made attempts to obtain documents under the Freedom of Information Act 1982 (Cth), including documents evidencing the circumstances in which the visa had been cancelled. The applications were expressly stated to be urgent. Counsel for Mr Okwume submitted that the Department’s response to those applications was inept and obstructive. However, there is no separate cause of action pleaded in respect of the apparent mishandling of that application or its effect on Mr Okwume’s continuing detention. Nor did Mr Okwume attempt to show that the officers whose conduct is impugned in this action were aware of or participated in the Department’s response to (or lack thereof) the freedom of information applications.

84    Mr Okwume’s application for a protection visa was refused by a delegate of the Minister on 29 September 2005. The delegate determined that Mr Okwume was not a person to whom Australia owed protection obligations. Mr Okwume made an application for review of that decision before the then-named Refugee Review Tribunal (RRT) on 5 October 2005.

85    In the meantime, by at least 22 August 2005, officers of the Department had commenced an investigation into Mr Okwume’s identity. The investigation was directed by the National Identity Verification and Advice division of the Department (NIVA). The investigation was carried out by the Officer in Charge of Investigations for the Department in Brisbane, Mr Allan Hall. Mr Hall reported to Ms Grau in the early stages of that investigation that it had been discovered that Mr Okwume had been deported from Norway to Nigeria on 21 January 2005 after making a failed claim for asylum there. He further reported that Mr Okwume had entered Norway on a different passport. That passport specified his date of birth as being 5 November 1956. It had been examined by a Norwegian document examiner and found to be genuine.

86    The date of birth specified on the passport used by Mr Okwume to enter Australia was 1 May 1963. When Mr Hall questioned Mr Okwume about the discrepancy between the dates of birth on the two passports, Mr Okwume stated that the date of birth on his old passport was incorrect, that he had no record of his actual date of birth and that he had changed his officially recorded date of birth by swearing an affidavit in Nigeria. Over a series of interviews conducted in August 2005, Mr Okwume persisted in his claim that his passport was genuine and that he had obtained it from the passport office in Lagos.

87    Mr Hall wrote a report dated 14 October 2005 concerning Mr Okwume’s identity. It appears that the report was written earlier than that date, because it was sent to Ms Grau by email on the previous day. In that report, he noted that when Mr Okwume’s passport was first examined by an officer of the Department it was determined to be genuine, and he noted that Mr Kriss had subsequently determined that the passport was “fraudulent”. Mr Hall goes on to report that a NIVA re-examination of Mr Okwume’s passport had been requested in light of the conflicting views about its authenticity.

88    In an emailed response to Mr Hall dated 21 October 2005, Ms Grau stated that she considered more needed to be done to verify Mr Okwume’s identity. She queried whether additional documents could be obtained from Nigeria and whether Mr Okwume’s factual accounts as to his life in Nigeria could be verified. She asked Mr Hall to investigate further.

89    As foreshadowed in Mr Hall’s report of 14 October 2005, Mr Okwume’s passport was re-examined by another forensic document examiner within the Department, Mr Trevor Alt. Mr Alt prepared a report dated 2 November 2005 (the Alt Report). The Alt Report concludes with this statement:

As a result of my examination I am of the opinion that there is insufficient evidence to suggest that any fraudulent activity has occurred to any part of this document.

90    Mr Hall provided the Alt Report to Ms Grau and others within the Department by email dated 8 November 2005. In his email he stated that he had spoken to Mr Alt, who said that “he believed the document was a legitimate Nigerian passport and there was no evidence to indicate otherwise”. Mr Hall went on to say:

Given the result of Trevor Alt’s report I conclude that Livinus Okwume (01/05/1963) is not a fraudulent or assumed identity and is in fact his legitimate identity as evidenced by his passport. The investigations tasking in this case was based solely on the fact that Okwume was found at the border with a fraudulent passport, which justified an investigation into his true identity. As Okwume’s identity no longer seems in doubt, I recommend that the Investigations case into Okwume be suspended pending any further instructions, and that the matter be urgently referred to Detentions and Removals Section for consideration of the appropriateness of his continued detention.

91    Ms Grau became aware of Mr Alt’s conclusions the day before she received the Alt Report. On 7 November 2005, she sent an email to Ms Miriam Moore, the Director of Legal Opinions within the Department. She made a request for legal advice from Ms Moore in the following terms:

I have yet to see [Mr Alt’s] advice but am flagging with you my concern that if it is now established that the [passport] is not counterfeit, the grounds for cancellation of the visa and subsequent detention are erroneous.

Miriam,

would appreciate a legal opinion as to the lawfulness of detention given the scenario and how the detention can be maintained (eg. do we need to cancel visa again on basis of non genuine business visitor, or given visa had expired, do we need to do anything?)

92    Ms Moore replied on the same day. She advised:

Based on the information below I believe the visa cancellation would stand (unless challenged and set aside by a court or unless there is some other flaw in the cancellation that I am not aware of). Given the visa remains cancelled the detention would remain valid. I also note you are correct in pointing out that the visa would have ceased by now anyway so unless he holds some other kind of visa he would not be lawful and would need to be detained.

93    After she read the Alt Report, Ms Grau sent an email to Mr Hall prompting him to complete the enquiries she had requested in her email of 21 October 2005. She said “I still think we need something more that verifies his identity and story for now and for any subsequent removal, particularly given his date of birth has been changed”. She asked Mr Hall to arrange to have the issues arising in Mr Okwume’s case discussed at the next meeting of a committee known as the Detention Review Committee. She said there were issues arising in Mr Okwume’s matter that needed to be resolved, including the effect of the cancellation of his visa, whether Mr Okwume might be eligible for a bridging visa, whether Mr Okwume was immigration cleared and whether the advice needed to be provided to him.

94    On 10 November 2005 officers within the Department, including Ms Grau, made arrangements for various reports concerning Mr Okwume’s identity, including the Alt Report, to be brought to the attention of the RRT. Mr Okwume’s application for review of the delegate’s decision to refuse his application for a protection visa remained pending before the RRT at that time.

95    On 14 November 2005 Mr Hall conducted another interview with Mr Okwume with a view to following up the enquiries prompted by Ms Grau. The note of the interview prepared by Mr Hall suggests that Mr Okwume was not told about the Alt Report. Later that day, Mr Hall prepared a further report summarising his investigation into Mr Okwume’s identity. He stated:

On the basis of this [Alt Report] report I recommend that this case be referred to Detentions and Removal Section for action as it appears that OKWUME’s passport is legitimate which calls into question the basis of his cancellation of detention. [sic]

96    Mr Hall concluded by stating that he was continuing to carry out the enquiries suggested by Ms Grau in her email of 21 October 2005.

The Baxter Fires

97    Baxter is an immigration detention centre within the meaning of s 273(1) of the Act. It was purpose built to hold unlawful non-citizens who were detained under the Act and to ensure that they could not leave the facility without permission. It was operated by GSL.

98    On 12 November 2005, detainees (not including Mr Okwume) lit several fires at Baxter. Over a period from about 4:03am to 5:48am, a minor fire in a toaster was lit, a further fire was then started in the mess, a detainee set fire to the pedestrian entry to White One Compound, a further fire was lit in the vicinity of the laundry and further fires were lit in two sections of the accommodation areas.

99    After the fires broke out, detainees at Baxter blocked exits to the compound, preventing the guards there from safely evacuating the area and extinguishing or otherwise containing the fires. Between about 5:01am to 5:04am attempts were made by the guards to remove other detainees in the accommodation areas to positions of safety. Their attempts were abandoned when the detainees refused to cooperate. When GSL personnel attempted to enter the compound, they were threatened by some detainees, including with weapons.

100    Mr Okwume claims to have been asleep at the time that the fires broke out. He was woken, he says, by guards at Baxter banging loudly at the door of his room and telling him to get out. It is not disputed that the fires occurred in a highly tense situation in which other detainees at Baxter were blocking exits to the compound and preventing the guards there from effecting the removal of other detainees to positions of safety. Mr Okwume was treated for, at least, smoke inhalation. Although there were inconsistencies and other shortcomings in Mr Okwume’s evidence concerning his subjective experience of the fires, for the reasons given below, nothing ultimately turns upon the reliability of his evidence on that topic. Reports made by officers of the Department in the days and weeks following the fires indicate that Mr Okwume was deeply distressed by the incident and by his continued detention at Baxter more generally. I accept that to be the case.

Mr Okwume’s release

101    On 31 January 2006 the RRT determined that Mr Okwume was a person to whom Australia owed protection obligations. The RRT did not grant Mr Okwume a protection visa. It remitted the matter to a delegate of the Minister so that the remaining criteria for the grant of the visa could be determined. Mr Okwume was eventually granted a temporary protection visa on 5 April 2006 after undergoing further assessments, particularly in relation to health and public interest criteria. He was released from Baxter on the same day.

102    Baxter has since been closed and the buildings that once stood on the site no longer exist.

the FALSE IMPRISONMENT claim

103    The tort of false imprisonment is committed when a person’s freedom of physical movement is restrained without lawful justification: Darcy v State of New South Wales [2011] NSWCA 413 at [141]. Although Mr Okwume bears the burden of pleading and proving the period in which his freedom of physical movement was curtailed, it is for the respondent to prove that the pleaded period of imprisonment was lawfully justified: Trobridge v Hardy (1955) 94 CLR 147 at 152 (Fullagar J); Watson v Marshall and Cade (1971) 124 CLR 621 at 626 (Walsh J). See also Eshugbayi Eleko v Officer Administering the Government of Nigeria [1931] AC 662 at 670.

104    By [79] of the Further Amended Statement of Claim (FASC), Mr Okwume alleged that he was detained for a period of 294 days. By [80] he put the respondent to proof on the question of whether his detention was justified. By [79] and [80] of the defence, the respondent alleged that the period of detention was 259 days and further alleged that the detention was “required and justified by sections 189 and 196 of the Act”. The dispute concerning the period of detention, measured in days, turns on the date upon which Mr Okwume was eventually released. I find that Mr Okwume was detained for 259 days, as pleaded by the respondent.

105    Mr Okwume positively pleaded a number of matters relevant to the questions of whether the decision to cancel his visa was validly made: FASC [1], [2], [3], [10], [42] and [43]. However, his plea at [80] of the FASC expressly put the respondent to proof on the lawfulness of his detention. That plea is expressly stated to be in the alternative. Consistent with the plea at [80] of the FASC, the trial proceeded on the basis that the enquiry as to the lawfulness of Mr Okwume’s detention was not limited to the allegations made at [1], [2], [3], [10], [42] and [43] of the FASC.

106    Ultimately it is for the Court to determine whether the case advanced by the respondent on the question of lawful justification is established. If the respondent’s pleaded case on that issue is not made out, liability for false imprisonment will be established: Fernando v Commonwealth (2010) 188 FCR 188 at [97] and [110].

107    As to the time of day on 21 July 2005 at which Mr Okwume’s detention commenced, the pleaded case is that Mr Okwume was “subsequently detained” after Mr Andersson made the decision to cancel Mr Okwume’s visa: FASC, [40] — [42]. That event occurred at 2:55pm on 21 July 2005. There is no pleaded allegation that Mr Okwume was falsely imprisoned prior to that time.

108    Mr Okwume was detained or caused to be kept in detention by different officers for different periods, as follows:

(1)    the period commencing at about 11:20am on 21 July 2005 when Mr Andersson told Mr Okwume that he was held in detention pursuant to s 192 of the Act (see [61] — [62] above) until;

(2)    the period commencing at about 12:25pm when Mr Andersson told Mr Okwume that he was held in detention pursuant to s 189 of the Act by reference to his alleged non-compliance with the requirements of s 166 of the Act (see [65] – [66] above) until;

(3)    the period commencing at 2:55pm when Mr Andersson cancelled Mr Okwume’s visa and notified Mr Okwume that he was detained under s 189 of the Act because he was reasonably suspected to be an unlawful non-citizen (see [73] above) until;

(4)    the period commencing at about 5:45pm on 21 July 2005 when GSL personnel, acting under the direction of Ms O’Connell, escorted Mr Okwume from Brisbane International Airport to a motel (see [79] above) until;

(5)    the period commencing at about 8:15am on 22 July 2005 when GSL personnel, acting under the direction of Ms Trad, escorted Mr Okwume on a flight from Brisbane to Adelaide and from there to Baxter (see [81] above) until Mr Okwume’s eventual release upon being granted a temporary protection visa on 5 April 2006.

109    Although the first two of those periods do not form a part of Mr Okwume’s claim for damages, they will nonetheless be considered insofar as they are relevant to the Court’s assessment of the state of mind of any one of the detaining officers, Mr Andersson, Ms O’Connell or Ms Trad in respect of the latter periods pleaded.

Section 189

110    As I have mentioned, the respondent’s pleaded case is that Mr Okwume was detained pursuant to s 189 of the Act and that the duration of his detention was determined by s 196 of the Act. I deal with the operation of s 196 of the Act later in these reasons.

111    Section 189 provides:

189 Detention of unlawful non-citizens

(1)    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.

….

112    Section 189 does not confer a discretionary power to detain a person. Instead, it imposes an obligation to detain in the circumstances it prescribes. The obligation is on any person meeting the description of an “officer”. Mr Andersson, Ms O’Connell and Ms Trad are “officers” as that phrase is defined in s 5(1) of the Act.

113    Section 5(1) of the Act defines the word “detain” to mean:

detain means:

(a)    take into immigration detention; or

(b)    keep, or cause to be kept, in immigration detention;

and includes taking such action and using such force as are reasonably necessary to do so.

Note:    This definition extends to persons covered by residence determinations (see section 197AC).

114    The phrase “immigration detention” is also defined. It includes, relevantly, being detained in the company of and restrained by an officer or being held by, or on behalf of, an officer in a detention centre established under the Act. Baxter is such a centre.

115    The word “restrain” (as used in the definition of the phrase “immigration detention”) is not defined. The word, in my opinion, is intended to convey the meaning that the physical freedom of movement of a person is curtailed in such a way that might otherwise be actionable in tort. The respondent acknowledges that Mr Okwume was restrained in the relevant sense, including whilst he was at Brisbane International Airport.

116    Section 189 of the Act is given further meaning by a number of other statutory provisions. Of critical importance is the distinction drawn in s 13 and s 14 of the Act between “lawful non-citizens” and “unlawful non-citizens”. A person is a lawful non-citizen in the migration zone if he or she holds a visa that is in effect: s 13(1). A non-citizen in the migration zone who is not a lawful non-citizen is an unlawful non-citizen for the purposes of the Act: s 14(1).

117    When a visa is cancelled, its former holder (if in the migration zone) becomes, on the cancellation, an unlawful non-citizen unless, immediately after the cancellation, he or she holds another visa that is in effect: see s 15 of the Act.

118    The effect of all of the above is that Mr Okwume’s detention under s 189 of the Act would be lawful provided that the officers who detained him or kept or caused him to be kept in detention reasonably suspected that he was a non-citizen in the migration zone who did not hold a visa.

119    The phrase “reasonably suspects” was considered by the Full Court of this Court in Goldie v Commonwealth of Australia (2002) 117 FCR 566 (Goldie). As Stone J said in that case, the word “reasonable” expresses an indeterminate standard, so that what may constitute a reasonable suspicion in one statutory context may not constitute a reasonable suspicion in another (at [51]). The principles stated by the majority (Gray and Lee JJ at [4] – [7]) may be distilled as follows:

(1)    standing alone, the word “suspects”, is capable of being construed to include the formation of an imagined belief, having no basis in fact;

(2)    the word “reasonably” conditions the word “suspects” to avoid the arrest of persons on the basis of a suspicion that has been arbitrarily or irrationally formed;

(3)    a suspicion that a person is an unlawful non-citizen must be objectively justifiable on the basis of relevant material, including that material which is discoverable by efforts of search and enquiry that are reasonable in the circumstances;

(4)    what is reasonable in a particular case depends upon all of the circumstances of that case, including the facts known to the officer at the particular time;

(5)    if an officer is aware of conflicting facts, it may not be reasonable to act only on facts capable of supporting a suspicion whilst disregarding facts tending to support against the formation of the suspicion;

(6)    the consequences befalling a person detained pursuant to s 189 support a construction that the officer forming the reasonable suspicion is obliged to make due enquiry to obtain material likely to be relevant to the formation of the suspicion;

(7)    a suspicion that cannot otherwise be reasonably formed does not become reasonable because of a perceived need to act quickly.

120    See also, in another legislative context, George v Rockett (1990) 170 CLR 104 at 115 — 116.

121    The meaning of the phrase “reasonably suspects”, as used in s 189 of the Act, was later considered by the High Court in Ruddock v Taylor (2005) 222 CLR 612 (Ruddock). Counsel for Mr Okwume submitted that it was not necessary for this Court to “wrestle” with the decision in Ruddock because the facts arising in that case differed in important respects from those arising in the case at bar. The facts in Ruddock may be summarised as follows.

122    Mr Taylor came to Australia from the United Kingdom in 1966 when he was nine. He did not acquire Australian citizenship. In 1994 he was granted a Transitional (Permanent) Visa under the Act which permitted him to remain in Australia. In 1996, he was convicted of sexual offences against children and served a term of imprisonment. In 1999, Mr Ruddock (then Minister for Immigration and Multicultural Affairs) cancelled Mr Taylor’s visa on character grounds: see s 501(2) of the Act. Mr Taylor was arrested by an officer of the Department and detained. The Minister’s decision to cancel Mr Taylor’s visa was quashed by an order of the High Court in April 2000 and Mr Taylor was released, having been detained for 161 days. Shortly afterward, the Parliamentary Secretary to the Minister again purported to cancel Mr Taylor’s visa on character grounds and Mr Taylor was again detained. In December 2000, the second cancellation decision was quashed by an order of the High Court, by which time Mr Taylor had spent a further 155 days in detention. Mr Taylor was detained on each occasion by arresting officers exercising the power conferred by s 189 of the Act, each of whom acted on the legally mistaken basis that the decisions to cancel Mr Taylor’s visa were valid.

123    Mr Taylor was awarded $116,000 in damages for false imprisonment by the District Court of New South Wales in an action commenced against the Minister, the Parliamentary Secretary and the Commonwealth. Mr Taylor did not name his arresting officers as parties in the action and he did not seek to attack their bona fides in the proceedings. An appeal brought by the defendants to the Court of Appeal was dismissed.

124    In the High Court, Mr Taylor submitted that his detention was an inevitable consequence of the (invalid) decisions to cancel his visa and, because the two decisions that brought about his detention were not lawfully made, it follows that his detention, too, was unlawful. He contended that the suspicion subjectively held by his detaining officers could not be objectively “reasonable” within the meaning of s 189 of the Act because the suspicion was founded upon a mistake of law, particularly an error concerning the validity of an administrative decision to cancel a visa.

125    The majority (Gleeson CJ, Gummow, Hayne and Heydon JJ) held (at [24]) that Mr Taylor’s submission wrongly conflated two separate inquiries, “one about the lawfulness of the decision to cancel; the other about the lawfulness of the detention”. The submission erroneously treated the former enquiry as determinative of the latter. The majority continued (at [26] – [27]):

[26]    It may be accepted that in so far as s 189 required, and thus authorised, the detention of those who are unlawful non-citizens, a want of power to cancel a visa, or failure in lawful exercise of that power, would lead to the quashing of the decision to cancel. It would then be apparent that the person was not an unlawful non-citizen and not within that aspect of the operation of s 189.

[27]    But that does not exhaust the operation of s 189. 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.

126    Mr Taylor advanced a submission to the effect that a suspicion could not be reasonable if it was based on a mistake of law, even if the mistake was not immediately apparent but was identified only after the detention was commenced. The short answer to Mr Taylor’s contention was expressed by the majority as follows (at [40]):

… what constitutes reasonable grounds for suspecting a person to be an unlawful non-citizen must be judged against what was known or reasonably capable of being known at the relevant time.

127    There was, the majority held, no basis on such an enquiry for drawing a distinction between questions of fact and questions of law (at [45]):

… the subject matter of the relevant suspicion is a statutory status — being an unlawful non-citizen. Errors about the conclusion cannot safely be divided between errors of law and errors of fact. Often, perhaps much more often than not, the error will be one of mixed law and fact.

128    It follows from those statements that an officer’s suspicion that a person is an unlawful non-citizen will not be unreasonable merely because the officer is mistaken about the legality and validity of a decision to cancel the person’s visa. In each case, the question of whether a suspicion founded on such a mistake is reasonable or not will depend on what was known or reasonably capable of being known at the relevant time by the detaining officer: Ruddock at [40].

129    An enquiry as to what is “reasonably capable of being known” by a detaining officer equates, to my mind, to an enquiry identifying what the detaining officer ought reasonably to have known at the relevant time: see the principles stated by the majority in Goldie extracted at [119 (3)] and [119 (6)] above. The assessment of what an officer ought reasonably to have known is an objective and evaluative assessment, requiring the Court to have regard to all of the circumstances. The statutory context and the position occupied by the officer within it will assume considerable importance on that enquiry.

130    Where the context is one in which a person is detained by an officer under s 189 of the Act on the basis of a suspicion that the person’s visa has been cancelled, the suspicion will not, in my opinion, be objectively reasonable if the officer at the relevant time knows, or ought reasonably to know, matters that would put a reasonable person in the officer’s position on notice that the cancellation decision is irregular or ineffective.

131    It is to be borne in mind that the High Court expressly rejected there being any relevant distinction between mistakes of fact and mistakes of law in assessing the reasonableness of an officer’s suspicion under s 189 of the Act. It follows, in my opinion, that the Court must ascertain the knowledge that the detaining officer had or ought reasonably to have had, not only in respect of the facts, but also in respect of the requirements of the law. Again, the question of whether a detaining officer ought reasonably to have known the requirements of the law will turn on the whole of the legal and factual context in which the impugned act of detention occurs.

132    In Ruddock it could not be said that the matters of law that affected the validity of the cancellation decisions made by the Minister and the Parliamentary Secretary were known or ought reasonably to have been known by the detaining officers at the relevant time (see [40]). Mr Taylor was released immediately upon each cancellation decision being quashed by the High Court. The principles stated in Ruddock are nonetheless directly applicable.

133    For all of the reasons given above, I accept the respondent’s submission that the identification of jurisdictional error by the Court affecting the decision to cancel Mr Okwume’s visa does not, of itself, demand a conclusion that Mr Okwume’s detention pursuant to s 189 of the Act was unlawful. The respondent may discharge its onus of proof on the false imprisonment claim by establishing that those officers who detained Mr Okwume (including by keeping or causing him to be kept in detention) reasonably suspected that he was a non-citizen who did not hold a visa that was in effect, in the sense that I have explained above.

134    In accordance with the test I have stated at [130] of these reasons, I now turn to consider whether Mr Andersson knew or ought reasonably to have known facts or matters that would put a reasonable officer in Mr Andersson’s position on notice that the cancellation decision was irregular or ineffective.

Mr Andersson

135    On the evidence adduced at trial, I am satisfied that Mr Andersson bona fide suspected that Mr Okwume was an unlawful non-citizen. The reasonableness of the suspicion is to be assessed in the context of Mr Andersson having personally made the decision to cancel Mr Okwume’s visa in his capacity as a delegate of the Minister and therefore involves a different kind of factual enquiry than that undertaken at least in the trial stages in Ruddock.

136    In cases where the detaining officer plays no part in the decision to cancel a visa, it will be a difficult task for a detainee to establish that the officer in fact had or ought reasonably to have had knowledge affecting the reasonableness of the suspicion. In that respect I accept the submission of the respondent that officers exercising the mandatory power under s 189 of the Act are ordinarily under no obligation to make independent enquiries as to the facts and circumstances in which a separate and antecedent cancellation decision was made by the Minister or a delegate of the Minister. To imply such an obligation would, in my opinion, frustrate an evident purpose of s 189, namely to provide for (indeed mandate) the taking into detention of a person by any officer under the Act, including officers who are not empowered, whether directly or by delegation, to make decisions in relation to the grant or cancellation of visas under the Act. Ordinarily such officers will not know, and cannot reasonably be expected to enquire into the substratum of facts or the legal limits of the provisions under which prior decisions affecting the detainee under the Act have been made. The Act would become unworkable if officers could not detain a person subject to a visa cancellation decision without first independently researching the factual and legal basis for the decision.

137    For the practical purposes of proof, the test may be expressed in the negative: the respondent must establish that Mr Andersson, Ms O’Connell and Ms Trad did not know, and ought not reasonably to have known matters (whether as to fact or law or both) that would put a reasonable person in each officer’s position on notice that the decision to cancel Mr Okwume’s visa was irregular or ineffective.

138    In light of what I have said about the operation of s 189 of the Act, it is necessary to examine the facts and circumstances affecting the validity of Mr Andersson’s decision to cancel Mr Okwume’s visa. However, that task is to be undertaken only for the purpose of determining what Mr Andersson in fact knew, and what he ought reasonably to have known, at the time that he detained Mr Okwume. Whether the cancellation decision was or was not vitiated by jurisdictional error may be relevant to that issue, but it is by no means determinative of it.

Mr Andersson’s cancellation decision

139    In what follows I will refer in the present tense to the relevant statutory provisions as in force on 21 July 2005.

140    The substantive and procedural requirements for the cancellation of Mr Okwume’s visa are set out in Subdivs C, D and E of Div 3 of Pt 2 of the Act. Subdivision D contains provisions empowering the Minister to cancel the visa of a person who has not been “immigration cleared” as that phrase is defined: see s 172(1). Subdivision C contains provisions empowering the Minister to cancel the visa of a person who has been immigration cleared.

141    Mr Okwume was treated by Mr Andersson as a person who was, immediately prior to the cancellation of his visa, a person who had not been immigration cleared. Counsel for Mr Okwume did not contend that Mr Andersson committed jurisdictional error by proceeding on that assumption at the relevant time. The submissions of both parties proceeded on the basis that s 116(1)(d) was the applicable provision for the cancellation of the visa of a person who had not left the port at which he or she had entered Australia: s 172(1)(a)(iii). I will proceed on that implicitly agreed basis.

142    Section 116(1)(d) is contained in Subdiv D. It provides:

116 Power to cancel

(1)    Subject to subsections (2) and (3), the Minister may cancel a visa if he or she is satisfied that:

…

(d)    if its holder has not entered Australia or has so entered but has not been immigration cleared—it would be liable to be cancelled under Subdivision C (incorrect information given by holder) if its holder had so entered and been immigration cleared; or

…

(emphasis added)

143    The exceptions in s 116(2) and (3) are not presently applicable. The effect of s 116(1)(d) is to empower the Minister to cancel the visa of a person who has not been immigration cleared if the visa would be “liable to be cancelled under” Subdiv C.

144    Counsel for the respondent submitted that the phrase “liable to be cancelled under” requires that there be grounds to cancel the visa on a substantive ground prescribed in Subdiv C, with the existence of such grounds to be established in accordance with the procedure governing decisions under Subdiv D, rather than in accordance with the procedures prescribed in Subdiv C itself. I accept that submission for the following reasons.

145    Subdivision E of Div 3 of Pt 2 of the Act is expressly intended to be an exhaustive statement of the requirements of the natural justice hearing rule “in relation to the matters it deals with”: s 118A(1). The subdivision relevantly deals with a circumstance in which the Minister is considering cancelling a visa under s 116. It is therefore an exhaustive statement of the procedural fairness obligations to be observed by Mr Andersson in cancelling Mr Okwume’s visa. Sections 119 and 120 are contained in Subdiv E. They provide:

119 Notice of proposed cancellation

(1)    Subject to Subdivision F (non-citizens outside Australia), if the Minister is considering cancelling a visa, whether its holder is in or outside Australia, under section 116, the Minister must notify the holder that there appear to be grounds for cancelling it and:

(a)    give particulars of those grounds and of the information (not being non disclosable information) because of which the grounds appear to exist; and

(b)    invite the holder to show within a specified time that:

(i)    those grounds do not exist; or

(ii)    there is a reason why it should not be cancelled.

(2)    The holder is to be notified in the prescribed way or, if there is no prescribed way, a way that the Minister considers to be appropriate.

(3)    The way of notifying the holder, whether prescribed or considered appropriate, may, without limiting the generality of subsection (2), be orally.

(4)    The other provisions of this Subdivision do not apply to a cancellation:

(a)    under a provision other than section 116; or

(b)    to which Subdivision F applies.

120 Certain information must be given to visa holder

(1)    In this section, relevant information means information (other than non—disclosable information) that the Minister considers:

(a)    would be the reason, or a part of the reason, for cancelling a visa; and

(b)    is specifically about the holder or another person and is not just about a class of persons of which the holder or other person is a member; and

(c)    was not given by the holder; and

(d)    was not disclosed to the holder in the notification under section 119.

(2)    The Minister must:

(a)    give particulars of the relevant information to the holder; and

(b)    ensure, as far as reasonably practicable, that the holder understands why it is relevant to the cancellation; and

(c)    invite the holder to comment on it.

(3)    The particulars and invitation are to be given in the way that the Minister considers appropriate in the circumstances.

146    Section 103 of the Act is contained in Subdiv C. It provides:

103 Bogus documents not to be given

A non-citizen must not give an officer, the Minister, or a tribunal performing a function or purpose under this Act, a bogus document or cause such a document to be so given.

147    The phrase “bogus document” is defined in s 97 as follows:

bogus document, in relation to a person, means a document that the Minister reasonably suspects is a document that:

(a)    purports to have been, but was not, issued in respect of the person; or

(b)    is counterfeit or has been altered by a person who does not have authority to do so; or

(c)    was obtained because of a false or misleading statement, whether or not made knowingly.

148    From here on, I will use the word “counterfeit” as a shorthand way of referring to a document that satisfies any one of paragraphs (a), (b) or (c) of that definition.

149    Where the Minister “considers” that the holder of a visa who has been immigration cleared has not complied with s 103 of the Act, the Minister may only cancel the visa if the Minister has first complied with the procedures prescribed in s 107 to s 109. Those requirements are taken to be an exhaustive statement of the natural justice hearing rule in relation to the matters that Subdiv C deals with: see s 97A of the Act. It is not necessary to set out the terms of s 107 to s 109 here. It is sufficient to note that the requirements of the natural justice hearing rules prescribed in Subdiv C (affecting a person who has been immigration cleared) are more generous towards the visa holder than those prescribed in Subdiv E (affecting a person who has not). Read together, these provisions evince a clear intention that the question of whether a person in Mr Okwume’s position (not being immigration cleared) has contravened s 103 of the Act is to be determined in accordance with the procedures prescribed in Subdiv E, including the requirements of s 119 and s 120 of the Act. The procedures prescribed in s 107 to s 109 of the Act do not apply.

150    I make the following further observations about the interrelation between Subdivs C, D and E of Div 3 of Pt 2 of the Act, insofar as they affect the decision to cancel Mr Okwume’s visa on the ground of non-compliance with s 103 of the Act:

(1)    as properly acknowledged by Counsel for the respondent, the Act does not permit one delegate of the Minister to determine whether there has been non-compliance with s 103 of the Act and another delegate of the Minister to determine whether the visa should be cancelled on that ground: there is a single power under s 116 of the Act to be exercised by a single decision-maker;

(2)    in determining whether the visa holder has contravened s 103 of the Act, the relevant question is not whether a document presented is objectively (for example) counterfeit: the definition of a “bogus document” in s 97 of the Act will be satisfied if the Minister reasonably suspects the document to be counterfeit;

(3)    in circumstances where it appears that a visa holder has contravened s 103 of the Act, the Minister must not proceed to determine whether a contravention has in fact occurred without first observing the requirements of subs 119(1)(a) and subs 119(1)(b)(i) and s 120;

(4)    s 119(1)(a) requires that the visa holder be given particulars both of the apparent grounds for cancelling the visa (here, the apparent ground being non-compliance with s 103 of the Act) and particulars of the information because of which that ground appears to exist;

(5)    the particulars of the information because of which that ground appears to exist must include all of the information upon which the delegate may reasonably suspect that the visa holder has presented a document that is (for example) counterfeit, including any “relevant information” bearing on that question as that phrase is defined in s 120 of the Act;

(6)    s 119(1)(b)(i) requires that the visa holder then be invited to show that the apparent grounds for the cancellation of the visa do not in fact exist (s 119(1)(b)(i));

(7)    the purpose of s 119(1)(b)(i) is to ensure that the visa holder has a meaningful opportunity to persuade the Minister not to act upon any or all of the particular information provided pursuant to s 119(1)(a) and any “relevant information” provided pursuant to s 120;

(8)    the Minister, before forming his or her satisfaction that the visa holder has contravened s 103 of the Act, must take into account any submissions made by the visa holder that bear on the question of whether the delegate may reasonably suspect that the relevant document is (for example) counterfeit;

(9)    where grounds exist to cancel the visa, the Minister retains a discretion as to whether or not the visa should indeed be cancelled;

(10)    s 119(1)(a) and 119(1)(b)(ii) require that the visa holder also be given an opportunity to show why the visa should not be cancelled, assuming that grounds for cancellation do exist.

151    Counsel for the respondent contends that a delegate in Mr Andersson’s position may form a reasonable suspicion that a passport is counterfeit by adopting the opinion of a person who is a qualified and experienced document examiner, such as Mr Kriss. Mr Andersson could, it is submitted, form an objectively reasonable suspicion on the mere basis that the expert opinion had been expressed, without knowledge of the facts or assumptions upon which the opinion was founded. It follows, the submission goes, that Mr Andersson’s suspicion would be objectively reasonable even if the expert opinion was, without Mr Andersson’s actual knowledge, unreasonable, arbitrary or affected by mala fides.

152    I accept Mr Andersson’s evidence that he in fact adopted a practice of acting upon conclusions expressed by Mr Kriss on matters affecting the examination of documents at Brisbane International Airport. I also accept Mr Andersson’s evidence that he considered Mr Kriss to be a qualified and experienced document examiner and that Mr Kriss was in fact a qualified and experienced document examiner. I also accept, with one important qualification, that Mr Andersson, as a delegate of the Minister, was entitled to obtain and take into account advice provided by an expert in the performance of his statutory functions and powers.

153    The qualification is that the advice of an expert is to be obtained, considered and acted upon in a manner that is consistent with the express and implied conditions that affect the exercise of the Minister’s powers in any particular case, including any express or implied obligations to afford procedural fairness to the visa holder. It is to that issue that I now turn.

154    In my opinion, by adopting the opinion of Mr Kriss in relation to Mr Okwume’s passport, Mr Andersson is to be taken to have made the same assumptions and findings and adopted the same reasoning of Mr Kriss. Further, for the purposes of s 119(1)(a) of the Act, the particular information upon which it appeared that there were grounds for the cancellation of Mr Okwume’s visa was not the mere fact that Mr Kriss had expressed an opinion that the laminate on Mr Okwume’s passport was counterfeit, but the particular facts, assumptions and reasoning said to support that opinion. There are at least three related reasons for construing and applying the Act in that way.

155    First, as I have said, the discrete determinations as to whether there had been a contravention of s 103 of the Act (and thus grounds to cancel the visa) and as to whether the visa should be cancelled form a part of a single decision to be made by a single decision-maker. It was not permissible for Mr Andersson to allow himself to be dictated to by Mr Kriss as to any issue arising for determination in that single decision-making process: R v Anderson; Ex parte Ipec-Air Pty Ltd (1965) 113 CLR 177 at 189 (Kitto J). See also, Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507 at [62] (Gleeson CJ and Gummow J).

156    Secondly, the phrase “reasonably suspects” in s 103 of the Act involves the same enquiry as that arising under s 189 of the Act, particularly in relation to the matters known or “reasonably capable of being known” by the decision maker. The facts, assumptions and reasoning underlying Mr Kriss’ opinion, even if not in fact known by Mr Andersson, were reasonably capable of being known by him. The objective reasonableness of Mr Andersson’s suspicion may therefore be affected by defects in Mr Kriss’ assumptions or reasoning, at least to the extent that the defects are reasonably capable of being identified and understood by him. The requirement that Mr Andersson’s suspicion be objectively reasonable was not fulfilled by Mr Andersson’s reliance upon the mere fact that Mr Kriss was a qualified and experienced document examiner.

157    Thirdly, the structure of Subdiv C and Subdiv D of Div 3 of Pt 2 of the Act is such that the visa holder is entitled to be heard on the question of whether the Minster may reasonably suspect that a document is (for example) counterfeit. I have identified that s 119(1)(a) of the Act expressly requires that the visa holder be given not only particulars of the apparent grounds for cancelling the visa (namely, for present purposes, particulars that there appeared to be a contravention of s 103 of the Act because Mr Okwume’s passport was bogus) but, in addition, particulars of the information because of which those grounds appeared to exist. The procedural fairness obligations prescribed in s 119 of the Act are to be construed so as to achieve the objective that Mr Okwume be given a meaningful opportunity to dissuade Mr Andersson from forming the requisite reasonable suspicion under s 97 of the Act at all.

158    In the statutory context I have described, it was not sufficient that Mr Andersson put to Mr Okwume a bare assertion that a document examiner had “determined” Mr Okwume’s passport to be “bogus”. He was required to give Mr Okwume sufficient particulars of the information upon which the document examiner’s findings were based. To deny a visa holder the opportunity to comment on the particulars of information relied upon by an expert adviser would be to deny the visa holder the meaningful opportunity to persuade the decision-maker that the expert opinion cannot be reasonably relied upon in determining whether grounds for cancellation of the visa exist.

159    Accordingly, s 119 of the Act required that Mr Okwume be given particulars of the facts and matters underlying Mr Kriss’ opinion, including information to the effect that the laminate on Mr Okwume’s passport differed in comparison with a specimen passport that had (at least apparently) been issued some seven years previously. Whether or not it was reasonable for Mr Andersson to suspect the document to be counterfeit on that basis is a matter in respect of which Mr Okwume was entitled to be meaningfully heard. Mr Andersson did not fulfil the statutory criteria by merely asserting (as he did) that a document examiner had determined the passport to be “bogus”. Mr Okwume could make no meaningful submission in respect to that particularised assertion except to broadly assert (as he did) that the passport was genuine. It is difficult to conceive of a situation in which the mind of a decision-maker would ever be swayed by a broad and unspecific denial of the kind given by Mr Okwume in answer to a broad and unspecific allegation.

160    In all of the circumstances, the procedural fairness Mr Andersson purported to extend to Mr Okwume in connection with the question of whether there existed grounds to cancel the visa did not comply with the statutory requirements and amounted to an empty gesture: compare Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 at [61] (Hayne, Kiefel and Bell JJ) and Applicant NAHF of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 128 FCR 359 at [36] (Hely J).

161    In the present case, the Act not only expressly prescribed that the rules of procedural fairness were to apply, but also expressly prescribed the content of the rules. Given that context, it is unnecessary for the Court to embark upon any enquiry as to whether Mr Okwume suffered any practical injustice of the kind discussed in a different statutory context in Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1. If I am wrong in that conclusion, I am satisfied that Mr Okwume did indeed suffer practical injustice by reason of Mr Andersson’s failure to comply with the requirements of s 119 of the Act. There was, in my opinion, a real chance that Mr Okwume, if provided with the “particulars of the information” prescribed by the Act, could have persuaded an open-minded decision-maker that there were flaws affecting the methodology adopted by Mr Kriss which, in turn, were capable of affecting the formation of the requisite state of mind under s 97 of the Act. Mr Kriss had unreasonably failed to satisfy himself that he had compared Mr Okwume’s passport with a current and reliable specimen.

162    There is a further related error vitiating Mr Andersson’s decision under s 116(1)(d) of the Act.

163    Mr Andersson cancelled the visa after being told by Ms O’Connell that she and another officer had determined the visa should be cancelled pursuant to s 116. It is to be recalled that Ms O’Connell had by that time come to realise that Mr Okwume had been purportedly (and wrongly) informed, at her direction, that he was detained under s 189 of Act because of his perceived non-compliance with s 166 of the Act.

164    On that topic, in cross-examination, Mr Andersson referred to his Running Sheet and said:

I mean, it says here that she - once Ben [Kriss] had looked at it she referred it back to me to cancel on that ground.

165    Against that background, Mr Andersson not only failed to give Mr Okwume the prescribed information, he embarked on the decision-making process on the predetermined footing that grounds for the cancellation of the visa existed. He was, I find, acting in accordance with a perceived responsibility to act in accordance with the preferences of his Duty Manager Ms O’Connell and, to that extent, permitted an extraneous circumstance to interfere with his function of independently determining, in accordance with the prescribed statutory procedures, that grounds for cancellation of the visa existed. Expressed another way, he denied Mr Okwume procedural fairness by foreclosing his mind to matters that the Act required him to determine.

166    These conclusions are further supported by an examination of the whole of Mr Andersson’s conduct from the time of his first dealings with Mr Okwume on the morning of 21 July 2005. The evidence is such that he did not avert to or comply with the requirements of the Act in other respects, but instead had a practice of acting on Ms O’Connell’s instructions in respect of all matters affecting Mr Okwume’s interests. I place significant weight on Mr Andersson’s conduct in announcing to Mr Okwume earlier in the day that he was detained under s 189 of the Act, an announcement he made at the direction of Ms O’Connell who had determined (wrongly) that Mr Okwume could and should be detained because of his perceived failure to comply with s 166 of the Act. Putting aside the seriousness of Ms O’Connell’s initial error, the evidence supports an inference that Mr Andersson did not turn his own mind to the requirements of the Act at all in that instance. He was, likewise, ignorant of his obligations to comply with s 119 and s 120 of the Act, particularly the requirement to provide Mr Okwume with particulars of the information upon which a reasonable suspicion might be formed as to whether the passport was counterfeit, and his related obligation to afford Mr Okwume a meaningful opportunity to respond to those very particulars.

167    Mr Andersson’s errors may to some extent be explained by the “tick-a-box” decision making process controlled and encouraged by a “tick-a-box” standard form utilised within the Department that did not accurately reflect the statutory requirements. The failure to afford Mr Okwume procedural fairness and the taking into account of extraneous considerations constituted jurisdictional errors such that the purported decision to cancel Mr Okwume’s visa was of no legal effect: Bhardwaj.

The pleaded jurisdictional errors

168    Mr Okwume’s pleaded case (at FASC [40]) alleged a series of errors said to vitiate the cancellation decision. For completeness, it is necessary to deal with each of them.

169    First, it is alleged (at FASC [40.1]) that Mr Andersson failed to take into account additional documents that Mr Okwume had brought with him which, it was said, tended to confirm that he had the identity he professed to have. I am not satisfied that any such jurisdictional error is made out. I am satisfied that Mr Andersson was aware of the additional documents in Mr Okwume’s possession.

170    Next, it is alleged (at FASC [40.2]) that Mr Andersson erred in failing to ask Mr Okwume to provide a specimen of his signature for the purposes of comparison with the signature on his passport. Any such failure could not, in my opinion, amount to jurisdictional error. A reasonable suspicion that a passport is counterfeit may be formed irrespective of whether the passport holder is able to replicate the signature appearing in the document.

171    Next, it is alleged (at FASC [40.3]) that Mr Andersson failed to take into account the circumstance that two Departmental officers had “accepted the passport as genuine”. I am satisfied that Mr Andersson was aware of the circumstance that Mr Okwume’s passport had been inspected and returned to him prior to the claim for protection having been made. That circumstance would not preclude Mr Andersson from lawfully forming a reasonable suspicion that the passport was counterfeit, provided that the suspicion was otherwise formed in accordance with the requirements of the statute.

172    Next, it is alleged (at FASC [40.4] and [40.5]) that Mr Andersson committed jurisdictional error by failing to contact the person who had been nominated as a point of contact in Australia in connection with the aged care conference, or any other person connected with the conference. That allegation is not made out. It is not in dispute that Mr Okwume entered Australia on a short stay visa for the stated purpose of attending the conference. However, at the first opportunity after his arrival in Australia he declared that he intended to stay in Australia and to claim permanent asylum here. In those circumstances, there was no utility in contacting any person who had been nominated as a point of contact for the purposes of the short stay visa, specifically in relation to Mr Okwume’s intention to attend the aged care conference. On Mr Okwume’s own admission, he did not intend to leave Australia prior to the expiry of his visa. It has not been demonstrated that the conference contact person could or would have said anything at all to alter that circumstance. Further, it is open to a decision-maker under s 103 of the Act to determine a document to be bogus even if the person who presents the document is the same person apparently identified within it.

173    Next, it is alleged (at FASC [40.6]) that Mr Andersson failed to take into account “the penalty to the applicant that would fall on him in the event that his Visa were incorrectly cancelled”. This allegation appears to equate to an assertion that Mr Andersson did not have regard to the statutory consequence of making a jurisdictional error, such that Mr Okwume might be detained under s 189 of the Act (even though a lawful non-citizen) by other officers who might assume Mr Andersson’s decision to be regular and effective. I do not consider there to be any utility in determining this discrete allegation. Mr Andersson erred in the manner I have identified. Whether or not he paused to consider the possibility that he had erred adds nothing of consequence to the findings I have already made.

Mr Andersson’s detention of Mr Okwume

174    The legal consequence of the errors I have identified is that the decision to cancel Mr Okwume’s visa was not legally effective and that, accordingly, Mr Okwume remained a lawful non-citizen within the meaning of s 13 of the Act as at 21 July 2005. He retained that legal status until 21 August 2005, being the date upon which the visa expired. However, as I have mentioned, it does not follow that Mr Okwume’s detention under s 189 of the Act on 21 July 2005 was unauthorised.

175    In accordance with the conclusions I have expressed at [130] of these reasons, I now turn to consider whether Mr Andersson knew or ought reasonably to have known matters that would put a reasonable officer in Mr Andersson’s position on notice that the cancellation decision was irregular or ineffective. In making the assessment of what Mr Andersson knew or ought reasonably to have known, Mr Andersson’s dual status as an “officer” and as the delegate of the Minister who made the cancellation decision must be taken into account.

176    I take into account the circumstance that the Minister is not a legal practitioner. The Act nonetheless reposes in the Minister powers to cancel a visa that have the statutory consequence that a person meeting the description of an officer will act upon the assumption that the decision is legally effective, so as to deprive a person of their physical liberty. When exercising the cancellation power under s 116 of the Act pursuant to a delegation under s 496 of the Act, Mr Andersson stood in the shoes of the Minister. A person upon whom a statutory power is conferred ought reasonably to know the conditions of the exercise of the power. More specifically, the Minister may reasonably be expected to know at least the conditions affecting the exercise of the powers conferred under s 116 of the Act, including the requirements to comply with the rules of procedural fairness prescribed in s 119 and s 120. The relevant conditions are expressed on the face of the statute.

177    In the present case, Mr Andersson ought reasonably to have known that the power to cancel Mr Okwume’s visa was expressly conditioned by the requirements of s 119 of the Act. I am satisfied that Mr Andersson knew or ought reasonably to have known facts and matters that constituted a departure from those requirements, including the fact that he had not given Mr Okwume particulars of the information upon which there appeared to be grounds for cancelling the visa in accordance with s 119(1)(a). He knew or ought reasonably to have known that Mr Okwume, having not been provided with those particulars, did not and could not make meaningful submissions as to whether s 103 of the Act had been contravened, except to make a bare assertion that his passport was not false. Further, Mr Andersson knew that Ms O’Connell and another officer had, in his mind, determined that Mr Okwume’s visa should be cancelled so as to justify his detention and he knew that he was acting with the intention of achieving that objective.

178    It matters not that Mr Andersson did not subjectively appreciate that his decision was irregular or ineffective. A suspicion cannot be reasonably held if it is premised on unreasonable ignorance of the requirements of the very statute pursuant to which the suspicion is said to be held. In my opinion, the combination of facts and matters that were either known by or that ought reasonably to have been known by Mr Andersson would put a reasonable person in his position on notice that the decision was irregular or ineffective. In all of the circumstances, I am not satisfied on the balance of probabilities that Mr Andersson reasonably suspected Mr Okwume to be an unlawful non-citizen when he notified Mr Okwume that he was detained pursuant to s 189 of the Act at 2:55pm on 21 July 2005. Accordingly, the respondent has not discharged its onus of proof on the question of whether Mr Okwume’s detention at that time was lawfully justified.

179    I am mindful that it was not directly put to Mr Andersson in cross-examination that he had failed to observe the requirements of s 119 of the Act in the manner identified in these reasons. That omission can be explained by Counsel for Mr Okwume not having founded a case on a breach of that provision. Counsel for Mr Okwume did not make any submission as to how the requirements of Subdivs C, D and E of Div 3 of Pt 2 of the Act interrelated when invited to do so by the Court. The respondent, on the other hand, accepted that invitation. Counsel for the respondent correctly submitted that the requirements of Subdiv E applied and that s 119 of Subdiv E had been complied with. I have ultimately accepted the first part of that submission but rejected the latter.

180    I am satisfied that there is no unfairness to the respondent in determining that Mr Andersson contravened the Act in the manner I have identified in these reasons. The onus lay upon the respondent to prove that there was lawful justification for Mr Okwume’s detention. Mr Andersson clearly deposed without qualification in his evidence-in-chief that he had no independent recollection of any of the steps taken in cancelling Mr Okwume's visa. Consistent with that evidence, there was no oral evidence Mr Andersson could give to rebut the inferences available to be drawn from the documentary evidence, considered as a whole.

Ms O’Connell and Ms Trad

181    From late in the afternoon on 21 July 2005, Mr Okwume’s freedom of physical movement was restrained by GSL personnel acting under the direction of Ms O’Connell and then Ms Trad. I am satisfied that Ms Trad was advised of the cancellation decision at the time that she received Mr Andersson’s Detention Report and that she did not otherwise materially participate in the making of the decision. Ms O’Connell stands in a different position. She was an active participant in the events leading up to and culminating in the decision to cancel Mr Okwume’s visa.

182    As I have said, the onus was on the respondent to prove Ms O’Connell’s state of mind. She was not called to give evidence by either party. I proceed on an assumption that Ms O’Connell subjectively suspected Mr Okwume to be an unlawful non-citizen at the time that she directed GSL personnel to restrain Mr Okwume in their custody at about 5:15pm on 21 July 2005. Whether or not that suspicion was objectively reasonable depends upon what Ms O’Connell knew or ought reasonably to have known at the relevant time. Ms O’Connell’s status as Mr Andersson’s supervisor is relevant to that enquiry. So, too, is the fact that Ms O’Connell oversaw and directly participated in Mr Andersson’s decision to cancel Mr Okwume’s visa. Her role as an active and direct supervisor of Mr Andersson is such that she ought reasonably to have known the requirements of the law pursuant to which the visa was cancelled. The documents at least support the inference that Ms O’Connell knew that Mr Andersson had wrongly purported, at her direction, to detain Mr Okwume under s 189 of the Act earlier in the day without the visa having been cancelled at all. Ms O’Connell also knew that she, together with Mr Callaghan, had “determined” that Mr Okwume’s visa “should be cancelled” in order to justify Mr Okwume’s continued detention, and that she had communicated to Mr Andersson the “need to proceed with visa cancellation in this case”. She knew that she had “requested” that Mr Andersson “pursue cancellation procedures” under s 116 of the Act. I infer from her file note and from her contributions to the Running Sheet that she had read the forms completed by Mr Andersson which evidenced the things said and done by him in the course of making the cancellation decision. In light of the evidence to which I have referred, I am satisfied that Ms O’Connell either knew or ought reasonably to have known all of the facts and circumstances pertaining to the decision to cancel the visa. The facts and circumstances known or reasonably capable of being known by Ms O’Connell are sufficient to put a reasonable officer in her position on notice that the cancellation decision was irregular or ineffective. It follows that I am not satisfied on the evidence before me that Ms O’Connell reasonably suspected Mr Okwume to be an unlawful non-citizen.

183    If I am wrong in my analysis of the documentary evidence relating to Ms O’Connell’s state of mind, I would in any event conclude that the respondent has not discharged its burden of proof in establishing that Ms O’Connell did not know or was not reasonably capable of knowing the facts and circumstances to which I have referred.

184    Mr Okwume was falsely imprisoned by Ms O’Connell’s act of causing GSL personnel to curtail his freedom of physical movement for the purpose of removing him from Brisbane International Airport to a nearby motel. She caused that restraint by issuing a request for the services of GSL personnel at 5:15pm, which was acted upon no later than 5:45pm. That period of detention ceased when GSL personnel, acting upon Ms Trad’s instructions, conveyed Mr Okwume from the motel to the airport and, from there, to Adelaide.

185    Ms Trad was not called to give evidence. I am satisfied that Ms Trad was advised of the cancellation decision and that, in reliance upon that advice, Ms Trad suspected Mr Okwume to be an unlawful non-citizen. I am also satisfied that Ms Trad did not participate in the making of the visa cancellation decision in any way that might support an inference that she knew, or ought reasonably to have known, facts or matters that would put a reasonable officer in her position on notice that the cancellation decision was irregular or ineffective. There was nothing in the information conveyed to her that would or ought to have put her on notice as to any irregularities affecting the cancellation decision. She was entitled to proceed on the assumption (albeit mistaken) that the decision was legally effective. It follows that Ms Trad was lawfully justified in detaining Mr Okwume pursuant to s 189 of the Act by causing him to be escorted by GSL personnel from the airport to Baxter on 22 July 2005 and to be held in immigration detention there.

186    The claim founded in false imprisonment is made out in respect of the period commencing at 2:55pm on 21 July 2005 and continuing until an undetermined time on the morning of 22 July 2005 when GSL personnel continued Mr Okwume’s detention under the lawful direction of Ms Trad.

Pleaded detention by Elke Sorgel-Johnston

187    By [68.3] of the FASC, Mr Okwume alleged that upon the cancellation of his visa he had been detained by an officer of the Department named Ms Elke Sorgel-Johnston. By [68.3] of the defence, the respondent alleged that Ms Sorgel-Johnston had, in detaining Mr Okwume, formed the requisite suspicion under s 189 of the Act. Neither party adduced any evidence at trial. The case of both parties proceeded on the basis that the relevant acts of detention were those done by Mr Andersson, Ms O’Connell and Ms Trad. The documentary evidence adduced at trial does not support a contention that Mr Okwume was detained by a person named Elke Sorgel-Johnston. While Ms Sorgel-Johnston appears to have had some involvement in making operational arrangements in connection with Mr Okwume’s journey from Brisbane to Adelaide, it is not apparent on the evidence before me that she did any act which caused Mr Okwume’s freedom of physical movement to be curtailed.

Continuing detention and the Alt Report

188    This aspect of the false imprisonment claim turns on the effect of the Alt Report on the lawfulness of Mr Okwume’s continued detention.

189    On Mr Okwume’s case, the Alt Report had one of two effects: it demonstrated that Mr Okwume’s detention was unlawful from the outset or (alternatively) it rendered Mr Okwume’s detention unlawful immediately upon its contents becoming known to certain officers within the Department.

190    The respondent relies on what Hayne J said in Al-Kateb v Godwin (2004) 219 CLR 562 (Al-Kateb) at [224]: “s 189 requires officers to detain unlawful non-citizens and s 196 identifies the period of detention”. Section 196 of the Act, on the respondent’s case, justified Mr Okwume’s continued detention, at least from 21 August 2005, even if the decision to cancel his visa was legally ineffective.

191    It is necessary to construe s 196 of the Act in light of the respondent’s contentions.

Section 196

192    Section 196 of the Act relevantly provides:

196 Duration of detention

(1)    An unlawful non-citizen detained under section 189 must be kept in immigration detention until he or she is:

(a)    removed from Australia under section 198 or 199; or

(b)    deported under section 200; or

(c)    granted a visa.

(2)    To avoid doubt, subsection (1) does not prevent the release from immigration detention of a citizen or a lawful non-citizen.

(3)    To avoid doubt, subsection (1) prevents the release, even by a court, of an unlawful non-citizen from detention (otherwise than for removal or deportation) unless the non-citizen has been granted a visa.

(4)    Subject to paragraphs (1)(a), (b) and (c), if the person is detained as a result of the cancellation of his or her visa under section 501, the detention is to continue unless a court finally determines that the detention is unlawful, or that the person detained is not an unlawful non-citizen.

(4A)    Subject to paragraphs (1)(a), (b) and (c), if the person is detained pending his or her deportation under section 200, the detention is to continue unless a court finally determines that the detention is unlawful.

(5)    To avoid doubt, subsection (4) or (4A) applies:

(a)    whether or not there is a real likelihood of the person detained being removed from Australia under section 198 or 199, or deported under section 200, in the reasonably foreseeable future; and

(b)    whether or not a visa decision relating to the person detained is, or may be, unlawful.

(5A)    Subsections (4) and (4A) do not affect by implication the continuation of the detention of a person to whom those subsections do not apply.

(6)    This section has effect despite any other law.

(7)    In this section:

visa decision means a decision relating to a visa (including a decision not to grant the visa, to cancel the visa or not to reinstate the visa).

193    Once detained under s 189 of the Act, Mr Okwume was, on the respondent’s submission, required to be kept in detention until one of the three events in s 196(1) occurred. The submission was premised on the assumption that Mr Okwume was not “a person identified in s 196(2)”. The assumption is an important one. A person may fall within the description in s 196(2) of the Act if the person has previously been the subject of a visa cancellation decision that is legally ineffective in accordance with the principles stated by the High Court in Bhardwaj.

194    A person described in s 196(2) would not be liable to be deported under s 200 of the Act, nor would the person be liable to be removed pursuant to s 198 or s 199. The person would not require the grant of a visa within the meaning of s 196(1)(c) in order to qualify for release because he or she would continue to hold the same visa forming the subject matter of the purported decision. He or she would continue to hold a visa that was “in effect” within the meaning of s 13 of the Act unless the visa had expired or otherwise ceased to be in effect.

195    The word “detain” in s 189 of the Act (as defined in s 5(1)) includes the continuing act of keeping or causing a person to be kept in immigration detention. The continuing act must be accompanied by the requisite state of mind. The word “detain” has the same meaning in the context of the opening words of s 196. If circumstances arise such that the relevant officer no longer reasonably suspects the person to be an unlawful non-citizen there would, in my opinion, be no statutory obligation to “keep” the person in immigration detention within the meaning of the word “detain” in s 5 and s 189.

196    Section 196(2) of the Act provides that nothing in s 196(1) prevents the release from immigration detention of a person having the actual status of a lawful non-citizen. However, it does not follow that a person who has the actual status of a lawful non-citizen is entitled to be released. The person must, in my opinion, be kept in detention for so long as the detaining officer maintains a reasonable suspicion that the person does not have that status. Consistent with what I have said in connection with s 189 of the Act, the reasonableness of the suspicion will depend upon what is known or reasonably capable of being known by the detaining officer. Circumstances may arise in which the detaining officer’s suspicion under s 189 of the Act no longer persists in fact, or in which a suspicion that was once reasonably held no longer has an objectively reasonable quality. A detaining officer who no longer has a reasonable suspicion that a person is an unlawful non-citizen must proceed on the basis that the person falls within s 196(2) of the Act. Nothing in either s 189 or s 196(1) of the Act would mandate the person’s continued detention. There being no other provision lawfully justifying the continued detention of the person, the person must be released.

197    It should be noted that s 196 of the Act expressly provides for the continued detention of certain persons whose visas are cancelled on character grounds pursuant to s 501 of the Act and those persons detained pending deportation pursuant to s 200 of the Act (see respectively s 196(4) and s 196(4A)). Those are limited excepted circumstances in which the Act authorises the continued detention of persons until such time as a court finally determines their status as a lawful non-citizen. Against the rule of construction in s 196(5A), I have not used those provisions to aid my interpretation of s 196 of the Act insofar as it applies to a person in Mr Okwume’s position. It is sufficient to note that there is no provision equivalent to those contained in s 196(4) and s 196(4A) that would have required or authorised Mr Okwume’s continued detention until the lawfulness of his detention was finally determined by a court of competent jurisdiction.

The effect of the Alt Report

198    Mr Okwume’s claim that the Alt Report demonstrated that the visa cancellation decision was invalid from the outset should be rejected.

199    The Alt Report contains an opinion inconsistent with that expressed by Mr Kriss. Upon receiving the Alt Report, Mr Kriss maintained his original opinion and communicated that view to officers within the Department. At the Departmental level, there exists a contest of experts. However, this Court did not admit into evidence any expert report for the purpose of resolving that contest. It was not necessary to do so.

200    The validity of the visa cancellation decision does not turn upon the question of whether the laminate on Mr Okwume’s passport was counterfeit in actual fact. The validity of the decision turns upon inter alia the question of whether the decision-maker reasonably suspected, at the relevant time, that the laminate was counterfeit. The circulation of the Alt Report did not have the effect of demonstrating that the visa cancellation decision was invalid. The report was not before the relevant decision-maker at the relevant time.

201    It is to be borne in mind that Mr Okwume was detained in Baxter by GSL personnel acting under the direction of the Manager of Baxter. It was not alleged by Mr Okwume, and nor is it established on the evidence, that the Manager of Baxter was an “officer” for the purposes of s 189 of the Act. Rather, the Manager of Baxter acted in accordance with a direction given by Ms Trad who in turn, as I have noted, acted on a reasonable suspicion that Mr Okwume was an unlawful non-citizen by reason of the visa cancellation decision. It was accordingly Ms Trad who caused Mr Okwume to be kept in immigration detention. There was no evidence adduced at trial to show that the person responsible for causing Mr Okwume to be kept in detention at Baxter, Ms Trad, knew or ought reasonably to have known about the content of the Alt Report.

202    Assuming I am wrong in identifying Ms Trad as the officer who caused Mr Okwume to be kept in detention, I am satisfied that other officers of the Department who might have had it within their power to release Mr Okwume (or at least to recommend his release) had, at the time of the dissemination of the Alt Report, reasonable grounds to suspect that Mr Okwume was an unlawful non-citizen such that s 189 and s 196 of the Act continued to mandate that he be kept in detention even after the receipt of the Alt Report.

203    I give detailed reasons for that finding in the context of Mr Okwume’s claim founded in the tort of misfeasance in public office, to which I now turn.

THE MISFEASANCE CLAIM

204    Liability of a public officer for the tort of misfeasance in public office will be established where the officer does an act which he or she knows is beyond power and which involves a foreseeable risk of harm to the plaintiff; Northern Territory of Australia v Mengel (1995) 185 CLR 307 (Mengel) at 347 (Mason CJ, Dawson, Toohey, Gaudron and McHugh JJ), or where he or she is actuated by an intention to harm the plaintiff: Mengel at 348; Farrington v Thomson [1959] ALR 695; [1959] VR 286 (Farrington) at 293 (Smith J); Pemberton v The Attorney-General [1978] Tas SR 1 (Pemberton) at 25 – 31 (Chambers J); Little v Law Institute Victoria [1990] VR 257 (Little) at 269 – 270 (Kaye and Beach JJ). In Mengel, Deane J expressed the elements of the tort as follows (at 370):

… (i) an invalid or unauthorised act; (ii) done maliciously; (iii) by a public officer; (iv) in the purported discharge of his or her public duties; (v) which causes loss or harm to the plaintiff.

205    His Honour’s reference there to an act done maliciously is to be understood as referring to an act done with actual knowledge that the act is beyond power. The Court expressly rejected a submission that “a public officer is liable for misfeasance if the officer ought to know that he or she lacks power” (Mengel at 348; citing with approval Farrington at 293, Little at 270 and Pemberton at 25 – 31). Actual knowledge is required.

206    In Lock v Australian Securities and Investments Commission (2016) 111 ACSR 318; [2016] FCA 31 Gleeson J said (at [124] citing Mullins J in Leinenga v Logan City Council [2006] QSC 294 at [64]) that an allegation of misfeasance in public office:

‘… is a very serious allegation to be made against a person who holds public office. It cannot be made in a broad brush way. It requires particularity in setting out the facts that can, if proven, establish the cause of action’.

Vicarious Liability

207    Mr Okwume alleges (at FASC [3.7]) that “the Respondent is and was vicariously liable for any loss or damage tortiously caused by a Departmental Officer in undertaking or failing to undertake any acts as described in this pleading”. By that generalised plea, Mr Okwume alleged that the Commonwealth would be vicariously liable for the tort of misfeasance of public office alleged to have been committed by Ms Grau.

208    As to vicarious liability, the majority in Mengel said (at 347, citing Dixon J, as he then was, in James v The Commonwealth (1939) 62 CLR 339 (James) at 359 – 360):

… it is to be borne in mind that, although the tort is the tort of a public officer, he or she is liable personally and, unless there is de facto authority, there will ordinarily only be personal liability.

209    Counsel for the respondent submitted that Mr Okwume’s plea in respect of the respondent’s vicarious liability for the alleged tort of Ms Grau could not succeed on the law because it was inconsistent with the passage in Mengel to which I have just referred. I do not accept the respondent’s submission insofar as it advances an unqualified contention that the Commonwealth could not in any circumstance be vicariously liable for a tort of misfeasance in public office committed by a public officer. The majority in Mengel did not go so far. In citing James, the majority should be understood as referring to what Dixon J (as he then was) said in that case concerning the historical common law footings affecting the Crown’s liability in tort. His Honour said (at 359 – 360):

The liability of the Commonwealth for tort may, I think, be treated for the purposes in hand as arising under Part IX of the Judiciary Act 1903-1937: See Musgrave v The Commonwealth; Werrin v The Commonwealth. The immunity of the Crown from liability for tort, to which sec 56 seems to be directed, was in part founded, or explained, upon the principle that a servant of the Crown committing an actionable wrong became individually liable but could impose upon the Crown no vicarious responsibility. The maxim rex non potest peccare excluded the maxim respondent superior.

…

But it is important to see that, once there is found a de-facto authority from the Crown in right of the Commonwealth within the scope of which an alleged tort is committed, the doctrine of ultra vires is not used to produce the same immunity as formerly arose from the incompetence of an officer at common law to bind the Crown by his tortious acts.

(footnotes omitted)

210    Since the decisions in James and Mengel the High Court has confirmed that the source of the Crown’s liability in tort is the common law, s 75(iii) of the Constitution and s 56 of the Judiciary Act abrogating the immunities (also arising at common law) traditionally enjoyed by the Crown in right of the Commonwealth.

211    That issue aside, it is clear that the passage in Mengel (extracted at [208] above) allows for the possibility that the Crown in right of the Commonwealth may be vicariously liable in tort where there is found to be “de facto authority” of the Crown, within the scope of which the alleged tort is committed. As a matter of practical reality, the party bearing the onus of pleading and proving the existence of any such de facto authority in connection with acts that constitute an intentional abuse of power will face a significant, although not impossible, challenge. In stating that there will “ordinarily” only be personal liability, the majority in Mengel should be understood as recognising that cases in which de facto authority for acts constituting such an abuse may arise, but will be rare. For an instance of a case in which there was, on the facts, de facto authority by an agent or instrumentality of the Crown for an act amounting to misfeasance by a public officer see State of South Australia v Lampard-Trevorrow (2010) 106 SASR 331 at [267] – [275].

212    Mr Okwume did not plead, or prove at trial, any facts that would establish that the acts alleged against Ms Grau were acts undertaken within the scope of the de facto authority of the Crown in right of the Commonwealth. Even if personal liability against Ms Grau could be established, vicarious liability on the part of the named respondent in this proceeding must, in my opinion, fail for that reason.

The allegations against Ms Grau

213    More importantly, however, I am not satisfied that personal liability against Ms Grau is established in any event.

214    As I have mentioned, Mr Okwume’s pleaded case lacked precision. The written submissions may be understood as making two overlapping allegations:

(1)    from at least the date of her receipt of the Alt Report, Ms Grau wrongly failed to release Mr Okwume from detention knowing that there remained no lawful basis for his detention;

(2)    alternatively, Ms Grau had a duty to draw to the attention of the Minister the findings in the Alt Report so as to ensure that Mr Okwume was granted a bridging visa in the exercise of the Minister’s personal power under s 195A of the Act and so become entitled to be released by reason of s 196(1)(c) of the Act.

215    Underlying the second of those contentions was a submission that Ms Grau owed Mr Okwume a duty at common law to “facilitate” his freedom. Reliance was placed on the English judgments of R (Kaiyam) v Secretary of State for Justice [2015] AC 1344 and R (Walker) v Secretary of State for Justice [2010] 1 AC 553 and on Wei v Minister for Immigration and Border Control (2015) 327 ALR 28.

216    Both contentions proceeded from an assumption that the Alt Report necessarily had the consequence that Ms Grau did not and could not, for the purposes of s 189 of the Act, reasonably suspect Mr Okwume to be an unlawful non-citizen. The assumption is incorrect.

217    The receipt by Ms Grau of the Alt Report did not bring about the consequence that Mr Okwume was, objectively, a lawful non-citizen. The most that can be said of the Alt Report is that it revealed that two document examiners within the Department (Mr Alt and Mr Kriss) had expressed competing opinions as to whether Mr Okwume’s passport was a genuine document. This Court did not receive opinion evidence from either document examiner and no occasion arises for the Court to determine for itself which of the two experts was objectively correct.

218    More importantly, however, the discovery of matters by Ms Grau that might indicate that the visa cancellation decision was invalid did not and could not restore Mr Okwume to the status of a person holding a visa that was “in effect” within the meaning of s 13 of the Act. His visa was, as and from 21 August 2005, no longer in effect. He was, on and from that date, an unlawful non-citizen, whether or not the decision to cancel the visa on 21 July 2005 was validly made. Different questions might have arisen (depending on the circumstances) had the Alt Report been obtained and circulated prior to the expiry of Mr Okwume’s visa. But that is not what occurred in fact.

219    On the facts as they did occur, I am satisfied that Ms Grau expressly (and quite properly) turned her mind to the question of Mr Okwume’s status as a lawful or unlawful non-citizen. She promptly sought legal advice on the question upon becoming aware of the opinion expressed in the Alt Report, without waiting to receive a copy of it. Ms Grau was aware of the incontrovertible fact that Mr Okwume would not hold a visa, even if the validity of the visa cancellation decision could have been affected in any way by the opinion expressed in the Alt Report. In all of the circumstances, I am satisfied that Ms Grau reasonably suspected Mr Okwume to be an unlawful non-citizen in early November 2005, such that even if she was the officer who at that time caused Mr Okwume to be detained (which was not established at trial), she did not act beyond power in doing so.

220    It follows that Mr Okwume has failed to establish that the alleged acts or omissions of Ms Grau were accompanied by the state of mind necessary to found her liability in the tort of misfeasance of public office. The evidence is to the contrary. Ms Grau ensured that the Alt Report was provided to the RRT. That was an act that could only have assisted Mr Okwume in his application for review of an earlier decision to refuse to grant him a protection visa. Further, Ms Grau made arrangements to ensure that the circumstances of Mr Okwume’s original detention and the new information concerning his passport were brought to the attention of a committee within the Department which had the responsibility of reviewing the legality of the detention of detainees held at Baxter. Again, that conduct is inconsistent with the state of mind required to be proven on this aspect of Mr Okwume’s claim.

The Bridging Visa Contention

221     I am not satisfied that Ms Grau owed Mr Okwume any positive duty to bring the Alt Report to the attention of the Minister pursuant to a “common law duty to facilitate freedom” or otherwise. The submissions in connection with that issue assumed that Ms Grau knew that Mr Okwume was, in all of the circumstances, entitled to be granted a bridging visa and that, had his circumstances come to the attention of the Minister, the Minister would have been compelled to grant him one. Each premise is wrong. It was not established as a question of fact that Ms Grau had the knowledge contended for. More importantly, however, the submission that the Minister would have been compelled to grant a bridging visa is inconsistent with s 73 or s 195A of the Act. Section 73 provides:

73 Bridging visas

If the Minister is satisfied that an eligible non-citizen satisfies the criteria for a bridging visa as prescribed under subsection 31(3), the Minister may grant a bridging visa permitting the non-citizen to remain in, or to travel to, enter and remain in Australia:

(a)    during a specified period; or

(b)    until a specified event happens.

222    An eligible non-citizen is a person who has been immigration cleared within the meaning of s 172 of the Act. As I have said, the trial proceeded with both parties assuming and submitting that s 116 of the Act was the proper provision under which cancellation of Mr Okwume’s visa fell to be decided. Mr Okwume had been refused immigration clearance prior to the cancellation of his visa because of his alleged non-compliance with s 166 of the Act. No evidence was adduced at trial to demonstrate that the Department was wrong in that assessment. It was implicitly, if not expressly, agreed by the parties that Mr Okwume was not immigration cleared immediately prior to the cancellation of his visa. Having conducted his case on that basis, Mr Okwume cannot now advance the inconsistent proposition that he at any time was an eligible non-citizen for the purpose of s 73 of the Act. Accordingly, he has not demonstrated that he was a person to whom the Minister had the power to grant a bridging visa under s 73.

223    It was then submitted that Ms Grau had a duty to bring the Alt Report to the Minister’s attention so that the Minister would then be required to grant Mr Okwume a visa in the public interest pursuant to s 195A of the Act. Section 195A relevantly provides:

195A Minister may grant detainee visa (whether or not on application)

Persons to whom section applies

(1)    This section applies to a person who is in detention under section 189.

Minister may grant visa

(2)    If the Minister thinks that it is in the public interest to do so, the Minister may grant a person to whom this section applies a visa of a particular class (whether or not the person has applied for the visa).

…

Minister not under duty to consider whether to exercise power

(4)    The Minister does not have a duty to consider whether to exercise the power under subsection (2), whether he or she is requested to do so by any person, or in any other circumstances.

Minister to exercise power personally

(5)    The power under subsection (2) may only be exercised by the Minister personally.

…

224    The written submission made on behalf of Mr Okwume in connection with this provision reads, in part, as follows:

47.    Section 195A of the Act provides legal capacity to the Minister to grant any visa type, ‘in the public interest’. The provision that the Minister ‘may’ grant a visa is to be read as mandatory in the light of the common law requirements regarding liberty, and that is said notwithstanding that the power in s195A is specifically non-compellable. There may be no capacity at law to issue mandamus against the Minister, but she (at the relevant time it was Ms Amanda Vanstone) had to be kept fully informed by her Departmental officials in order that she might be in a position to attend to a function as serious as granting a visa which could end detention. It follows that the provision of information to the Minister, specifically that the Passport was not bogus, was required of Grau in her position of Detention Review Manager, Brisbane, a position in which her email traffic reveals she was the centre of information and decision making regarding the Applicant’s detention.

225    The construction of s 195A of the Act advanced in that submission is manifestly wrong. The power is discretionary, not mandatory. The power is to be exercised in the legal context of a person first having been detained under s 189 of the Act, a provision which expressly abrogates any common law right in respect of personal liberty. The submission involves a misapplication of the well-established principle of statutory construction, namely, that a statute is not to be construed as invading fundamental common law rights unless the language is reasonably capable of no other construction: see Sargood Brothers v The Commonwealth (1910) 11 CLR 258 at 279. As stated by the High Court in Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476 at [30]:

… courts do not impute to the legislature an intention to abrogate or curtail fundamental rights or freedoms unless such an intention is clearly manifested by unmistakable and unambiguous language. General words will rarely be sufficient for that purpose. What courts will look for is a clear indication that the legislature has directed its attention to the rights or freedoms in question, and has consciously decided upon abrogation or curtailment. As Lord Hoffmann recently pointed out in the United Kingdom, for Parliament squarely to confront such an issue may involve a political cost, but in the absence of express language or necessary implication, even the most general words are taken to be ‘subject to the basic rights of the individual’.

(footnotes omitted)

226    That principle of statutory construction does not support the imposition of a positive duty upon an officer of the Department in circumstances where no such duty is imposed by the express words of the enactment itself. Insofar as the positive duty is said to arise at common law, Mr Okwume’s Counsel could point to no authority in which the existence of a positive duty to “facilitate freedom” has previously been identified independently of any particular statutory context. I again bear in mind that the submissions presently under consideration are advanced in the context of Mr Okwume’s misfeasance claim in which the Court is concerned to identify with precision the particular duty said to have been breached. I am unable to identify the source, scope or nature of the duty said to have been breached in the present case with any precision, or at all.

227    Further, if there be a mandatory duty upon officers within the Department to bring to the Minister’s attention material that might cause the Minister to exercise the discretion conferred under s 195A of the Act in a detainee’s favour, the existence, source, scope and nature of such a duty was not clearly put to Ms Grau in the course of her evidence. It was not established that Ms Grau was aware of any such duty, nor was it established that she knowingly breached any such duty.

228    Mr Okwume’s Counsel submitted that the content and tenor of Ms Grau’s email communications evidenced an attitude whereby she was concerned only to ensure that Mr Okwume remained in detention rather than to ensure his immediate release. I do not accept that the communications should be interpreted in that way, particularly against the context of the other acts of Ms Grau to which I have referred. In addition, Ms Grau’s email communications are to be read in a statutory context in which s 189 of the Act not only empowered the detention of a person reasonably suspected to be an unlawful non-citizen, but mandated it. Ms Grau was entitled to obtain legal advice as to her own statutory obligations in that regard.

229    Contrary to the submission of Mr Okwume’s Counsel, Ms Grau did not act unreasonably or maliciously in causing further enquiries to be made as to Mr Okwume’s identity, even after the receipt of the Alt Report. She directed those enquiries to be made against the incontrovertible fact that the passport with which Mr Okwume had entered Australia bore a different date of birth to that which he had used whilst claiming asylum in Norway. Ms Grau’s conduct in directing further enquiries to be made in respect of Mr Okwume’s identity does not evidence “malice” on her part in the sense described by Deane J in Mengel.

230    The claim founded in misfeasance in public office is not established.

RULING ON EVIDENCE

231    In the course of trial I reserved my ruling on the admissibility of five documents tendered by Mr Okwume in support of his tortious claims founded in false imprisonment and misfeasance in public office. With the consent of the parties, I received the documents with a view to ruling on their admissibility in the course of this judgment. I rule the documents inadmissible for the reasons that follow.

232    The five documents are:

(1)    Parliament of Australia, Parliamentary Library, Research Brief, 31 March 2005 titled The Detention of Cornelia Rau: Legal Issues;

(2)    Commonwealth Ombudsman, Dept of Immigration and Multicultural Affairs, March 2006, Report 04 of 2006 titled Report on Referred Immigration Cases: Mr T;

(3)    Commonwealth Ombudsman, Dept of Immigration and Multicultural Affairs, December 2006, Report 06 of 2006 titled Report on Referred Immigration Cases: Mr G;

(4)    Commonwealth Ombudsman, Dept of Immigration and Citizenship, Report 07 of 2007 titled Report on Referred Immigration Cases: Detention Issues;

(5)    MJ Palmer, Report to Minister for Immigration, 6 July 2006 titled Inquiry into the Circumstances of the Immigration Detention of Cornelia Rau.

233    The documents were sought to be relied upon as tendency evidence pursuant to s 97(1) of the Evidence Act 1995 (Cth) (Evidence Act), which provides:

(1)    Evidence of the character, reputation or conduct of a person, or a tendency that a person has or had, is not admissible to prove that a person has or had a tendency (whether because of the person’s character or otherwise) to act in a particular way, or to have a particular state of mind unless:

(a)    the party seeking to adduce the evidence gave reasonable notice in writing to each other party of the party’s intention to adduce the evidence; and

(b)    the court thinks that the evidence will, either by itself or having regard to other evidence adduced or to be adduced by the party seeking to adduce the evidence, have significant probative value.

234    Mr Okwume, by his solicitors, gave reasonable notice of his intention to adduce the documents in evidence. The written notice states that the evidence was adduced to show that in 2005 and 2006 there was a “common practice amongst officials in the Department of Immigration of” (adopting the words of the notice):

(A)    failing to take into account all available information before reaching a conclusion that the person in question is an unlawful non-citizen (or that there is a proper basis to form a reasonable suspicion that the person is an unlawful non-citizen), and failing to make due enquiries to obtain material likely to be relevant to the formation of the suspicion. …

(B)    failing to monitor whether the factors taken into account in forming a view (or ‘reasonable suspicion’) that a person is an unlawful non-citizen had been later undermined or disproven, such that detention of individuals is maintained where there was no longer a basis for a ‘reasonable suspicion’ and therefore no basis to continue to detain: …

(C)    failing to understand the requirements of section 189 of the Migration Act and an inability to properly weigh evidence when forming a view as to whether a person is an unlawful non-citizen or forming a reasonable suspicion that the person is an unlawful non-citizen: …

235    The tendency, character, reputation or conduct said to be evidenced by documents is that of “officials in the Department of Immigration”. The officers to whom the reports relate are not shown to be the same officers who participated in any decisions forming the subject matter of these proceedings. Further, the Department is not a person within the meaning of s 97(1) of the Evidence Act. Although the word “person” is defined in s 2C of the Acts Interpretation Act 1901 (Cth) to include a body politic or a body corporate as well as an individual, the Department is none of those things.

236    Even if I were to proceed on the basis that the tendency is that of unnamed “officials within the Department” I do not consider the documents to have significant probative value in determining the issues joined in these proceedings. The allegation that the Commonwealth is vicariously liable for the torts of individual officers requires that Mr Okwume prove liability in tort of the individual officers concerned. The probative value of the reports is to be assessed in that legal context. I do not consider any of the reports to have significant probative value in establishing the liability in tort of the particular officers whose conduct is impugned in these proceedings. Assuming that it could be established in the proceedings that there existed in the Department at the relevant time a systemic failure to comply with the Act (and assuming, without deciding, that the documents could be admitted under s 97(1) of the Evidence Act for that purpose) in my opinion that circumstance would not assist the Court to any meaningful degree in determining whether, for example, Mr Andersson personally failed to comply with the requirements of the Act. Furthermore, insofar as the documents are said to be probative of a practice of failing to take relevant considerations into account, there was, at trial, very little dispute as to what the relevant officers took into account and what they did not. Rather, for the most part, the issue joined on the pleadings was whether, on its proper construction, the Act mandated that certain matters be taken into account in the exercise of the powers and functions in question.

237    I have otherwise accepted the supplementary written submissions filed on behalf of the respondent in connection with the limited probative value of the relevant portions of the documents themselves. I do not repeat those submissions here.

the NEGLIGENCE claim

238    Mr Okwume’s pleaded case founded in negligence is that the respondent owed him a non-delegable duty to “ensure his personal safety and that of his possessions” whilst he was detained at Baxter. The pleaded duty is inconsistent with what was said by the Full Court in SBEG v Commonwealth (2012) 208 FCR 235 (SBEG) at [19] (Keane CJ, Lander and Siopis JJ):

It is well-established that a gaoler owes a duty of care under the common law to exercise reasonable care for the safety of a person held in custody: Howard v Jarvis (1958) 98 CLR 177 at 183; Behrooz v Secretary, Department of Immigration and Multicultural and Indigenous Affairs (2004) 219 CLR 486 at [174] (Behrooz). But that obligation is not a guarantee of the safety of the detainee; it is an obligation of reasonable care to avoid harm to the detainee whether that harm be inflicted by a third person or by the detainee himself or herself. The risk of harm to the detainee is not the only matter to be considered in assessing whether reasonable care has been exercised: a consideration which must be addressed is the need to ensure effective detention in accordance with the law. That consideration is significant in this case having regard to the appellant’s adverse security assessment.

239    In light of what was said in SBEG Mr Okwume’s pleaded case that the duty was one to “ensure” certain outcomes should fail.

240    The evidence and submissions at trial nonetheless proceeded on the alternative basis that the standard expressed in SBEG was applicable. Although Mr Okwume has not made any application to amend his pleading, I have determined Mr Okwume’s claim founded in negligence by reference to the duty expressed in SBEG as pleaded by the respondent: a duty to take reasonable care for the safety of Mr Okwume’s person and personal property, including to take reasonable care to avoid reasonably foreseeable risks of injury of a physical or psychological nature whilst Mr Okwume was held at Baxter.

241    For the reasons that follow, Mr Okwume has not discharged his burden of proving any breach of that duty, nor has he established the requisite causal connection between the alleged breach and the particular harm alleged to have been suffered by him as a result.

The alleged breach

242    The respondent is said to have breached the relevant duty in a number of interrelated respects.

243    It is alleged that the walls of the buildings in the White One Compound were constructed from highly flammable material and that they were built to a standard referred to as “Type C” in the Building Code of Australia (Code). The pleaded allegation was that “Type C” construction was insufficient, in all of the circumstances, to discharge the respondent’s duty of care to detainees residing at Baxter. The building in which Mr Okwume resided was alleged to have been constructed by a method referred to as “sandwich filler” comprising a polystyrene material between two metal sheets.

244    That construction method was alleged to have caused the fires at Baxter to become an intense and fast moving inferno, such that detainees at Baxter were impacted by the fires in a way that they would not otherwise have been. It was further alleged that the respondent, by its employees and agents, knew that the construction method was “highly dangerous” because there had been fires in a number of detention centres less than two years previously involving the same construction material.

245    It was then alleged that the White One Compound was constructed to incorporate only one exit secured by a roller door which, in the event of a power blackout, staff at Baxter would not be able to open from outside the compound.

246    Finally, it was alleged that insufficient resources were allocated to White One Compound to enable the control of detainees, and that the emergency operational procedures used at Baxter were inadequate (although no particulars were pleaded as to how so).

247    Mr Okwume’s case at trial, insofar as it went to the respondent’s alleged breach, focused primarily upon the mode of construction of White One Compound and the question of whether the construction was such that the fire would have travelled too quickly to permit safe egress from the compound in the circumstances of a riot of the kind that broke out on 12 November 2005.

The Potts Report

248    Mr William Douglas Ridley Potts is a consulting mechanical engineer. He gave expert evidence in support of Mr Okwume’s claim that the mode of construction of the buildings in White One Compound was inadequate. He presented as a sensible witness who made appropriate concessions in cross-examination, particularly about the limitations of his instructions and assumptions.

249    Mr Potts’ assumptions about the size and layout of the relevant part of the compound are not disputed. At the relevant time, the compound consisted of about 19 dwellings around a clearing. Each dwelling measured about 14.4 metres by 3.5 metres. There were four residential units contained in each dwelling, each unit measuring about 3.4 by 3.5 metres. An architect’s plan of a typical dwelling shows that each room had both an internal door leading to a small bathroom and an external door. The external doors of each room opened onto the clearing in the compound.