FEDERAL COURT OF AUSTRALIA

DBE17 (by his litigation guardian Marie Theresa Arthur) v Commonwealth of Australia [2020] FCA 958

ORDERS

THE COURT ORDERS THAT:

1.    The respondent’s interlocutory application dated 18 March 2020 be dismissed.

2.    On or before 4 pm on 17 July 2020, the parties file any proposed agreed orders on the questions of costs, which are to be fixed by way of a lump sum.

3.    In the absence of any agreement pursuant to order 2, on or before 4pm on 17 July 2020 each party has leave to file and serve submissions of no more than 3 pages on the question of the costs of the interlocutory application.

4.    On or before 4 pm on 24 July 2020, the parties confer on appropriate orders to progress the matter to trial and file proposed agreed orders.

5.    The matter be listed for case management hearing on a date to be fixed after 24 July 2020.

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

REASONS FOR JUDGMENT

MORTIMER J:

introduction

1    The focus of this class action is on a cohort of people who were detained by the Commonwealth under the Migration Act 1958 (Cth) between 2011 and 2020, in circumstances specified in the amended statement of claim. The lead applicant claims that his detention, and the detention of each of the group members was for some period unlawful. The applicant seeks damages for false imprisonment for himself and for group members. As I explain below, the applicant’s case is premised on the proposition that by reason of circumstances which arise after an initially lawful detention under s 189 of the Act, immigration detention can become unlawful, where one or more of the permissible purposes set out in s 196(1) of the Act is in fact incapable of fulfilment, or not being pursued and carried into effect as soon as reasonably practicable.

2    The Commonwealth has applied for orders that this proceeding should be summarily dismissed pursuant to s 31A of the Federal Court of Australia Act 1976 (Cth) or r 26.01(1)(a) and (c) of the Federal Court Rules 2011 (Cth) and that there be summary judgment in its favour. It has also applied for orders pursuant to r 16.21 of the Rules that the applicant's ASOC be struck out in its entirety, or alternatively that it be struck out in part. It seeks costs in the matter. It contends, in substance, that s 196(1) prescribes three alternative end points, its language is intractable, and detention is lawful unless and until one of the events in s 196(1) occurs.

background

3    This proceeding already has quite a long history. The applicant commenced a proceeding in this Court (VID 750 of 2017) on 7 August 2017. Essentially the same case was pleaded as is now pleaded. The Commonwealth objected to this Court’s jurisdiction to hear and determine that proceeding. The Court upheld that objection and dismissed the proceeding: see DBE17 v Commonwealth of Australia [2018] FCA 1307; DBE17 v Commonwealth of Australia (No 2) [2018] FCA 1793. The applicant filed an appeal from those orders. That appeal was discontinued on 28 May 2019 and on 26 September 2019 the applicant filed a proceeding in the High Court. The applicant’s case remained the same. No summary dismissal claim or strike out application was brought by the Commonwealth in the High Court. Instead by summons filed 29 October 2019 the applicant sought that the proceeding be remitted to this Court. The Commonwealth’s submissions on that summons stated (at [2]-[3]):

In the Federal Court proceeding, the Commonwealth and the plaintiff agreed to settle the appeal to the Full Court of that Court on the basis that the plaintiff institute this proceeding, that the Commonwealth and the plaintiff agree to have the proceeding remitted to the Federal Court, and "that the remitted proceeding would proceed in the Federal Court under Part IVA of the Federal Court Act 1976 (Cth)”.

The Commonwealth does not seek to put a submission that is contrary to its agreement with the plaintiff.

(Citations omitted.)

4    By orders made on 6 December 2019, the High Court remitted the proceeding to this Court.

The applicant’s case as pleaded

The relevant facts to be taken as proven for the purposes of the interlocutory application

5    The parties accepted the interlocutory application should be considered on the basis the applicant could prove the allegations of fact made in the pleading. In its defence, and quite properly, the Commonwealth has made a number of factual admissions — especially as to dates of events that are more within its knowledge than the applicant’s. I have taken those admissions as part of the factual context I set out here.

6    DBE17 is a minor who was born in Australia on 19 September 2013 to parents being held in immigration detention. His mother was pregnant with him when she and his father entered Australia by boat. From his birth he has fallen within the definition of “unauthorised maritime arrival” in s 5AA of the Migration Act. Until the grant of a visa to him on 15 January 2015, he also fell within the definition in s 14 of the Migration Act of “unlawful non-citizen”.

7    He was born in Royal Darwin Hospital, at a time when it is admitted both his parents were detained under s 189 of the Migration Act. The Commonwealth in its Defence pleads and admits that the applicant himself was “detained under s 189” of the Migration Act on 11 October 2013; that is, when he was a month old. It pleads and admits that for the first month or so of his life, he “remained in the custody of” his parents, “each of whom were ‘unlawful non-citizens’ and ‘unauthorised maritime arrivals’”.

8    A few days after his birth, the applicant and his mother were transferred to another place of detention in Darwin, where his father was also located. This was Darwin Airport Lodge. About a month after his birth, the applicant and his parents were transferred to Christmas Island detention centre. They remained in that detention centre until 20 August 2014, when the applicant was not quite a year old. The applicant and his parents were then moved to detention in a location called “Perth Immigration and Residential Housing” for one night, and then moved again to a location called “Wickham Point Alternative Place of Detention” on 21 August 2014. Two days later they were moved again, this time to a place called “Bladin Alternative Place of Detention”.

9    The applicant and his parents remained detained at that location until they were granted a visa on 15 January 2015, and were released into the Australian community.

10    Section 198AD(2) of the Migration Act provides:

(2)     An officer must, as soon as reasonably practicable, take an unauthorised maritime arrival to whom this section applies from Australia to a regional processing country.

11    Despite the duty imposed by s 198AD(2), no officer took the applicant and his family to either Nauru or Papua New Guinea, both of which were, during the relevant period, regional processing countries designated by the responsible Minister pursuant to s 198AB of the Migration Act. The Commonwealth has in its Defence made a series of positive factual admissions about why this duty was not performed. Each of those factual admissions is designed, I infer, to support the proposition that it was at no time during the period 11 October 2013 to 15 January 2015 “reasonably practicable” to take the applicant (and his parents) to either PNG or Nauru. The Commonwealth also makes more general admissions of fact in its defence about it not being reasonably practicable to take some categories of detainees at PNG or Nauru.

12    On 11 July 2014, the applicant made a visa application. In its Defence at [19(g)], the Commonwealth admits that the visa application was invalid, by reason of the operation of s 46A of the Migration Act, which by sub-s 46A(1) provides:

(1)    An application for a visa is not a valid application if it is made by an unauthorised maritime arrival who:

(a)    is in Australia; and

(b)    either:

(i)    is an unlawful non‑citizen; or

(ii)    holds a bridging visa or a temporary protection visa, or a temporary visa of a kind (however described) prescribed for the purposes of this subparagraph.

Note:    Temporary protection visas are provided for by subsection 35A(3).

13    The responsible Minister is given, by the terms of s 46A(2), a personal power to render that prohibition inapplicable to an individual. Section 46A(2) provides:

(2)    If the Minister thinks that it is in the public interest to do so, the Minister may, by written notice given to an unauthorised maritime arrival, determine that subsection (1) does not apply to an application by the unauthorised maritime arrival for a visa of a class specified in the determination.

14    On the pleadings, it appears the power in s 46A(2) was never exercised in respect of the applicant or his parents. Rather the Commonwealth pleads and admits that, on or about 15 January 2015, the responsible Minister exercised another personal power conferred on him. That is the power in s 195A of the Migration Act, which provides:

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).

(3)    In exercising the power under subsection (2), the Minister is not bound by Subdivision AA, AC or AF of Division 3 of this Part or by the regulations, but is bound by all other provisions of this Act.

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.

Tabling of information relating to the granting of visas

(6)    If the Minister grants a visa under subsection (2), he or she must cause to be laid before each House of the Parliament a statement that (subject to subsection (7)):

   (a)    states that the Minister has granted a visa under this section; and

(b)    sets out the Minister’s reasons for granting the visa, referring in particular to the Minister’s reasons for thinking that the grant is in the public interest.

(7)    A statement under subsection (6) in relation to a decision to grant a visa is not to include:

   (a)    the name of the person to whom the visa is granted; or

(b)    any information that may identify the person to whom the visa is granted; or

(c)    if the Minister thinks that it would not be in the public interest to publish the name of another person connected in any way with the grant of the visa—the name of that other person or any information that may identify that other person.

(8)    A statement under subsection (6) is to be laid before each House of the Parliament within 15 sitting days of that House after:

(a)    if the decision to grant the visa is made between 1 January and 30 June (inclusive) in a year—1 July in that year; or

(b)    if the decision to grant the visa is made between 1 July and 31 December (inclusive) in a year—1 January in the following year.

15    In substance, and simplifying the effect of the provision somewhat, the effect of s 195A(3) is that a person need not have applied for a visa, and the duty in s 65 of the Act to grant or refuse a visa on the basis of satisfaction or non-satisfaction of requisite criteria does not apply. Thus, the Minister has a wide power to grant any class of visa.

16    The Court can therefore assume for the purposes of these interlocutory applications that between 11 October 2013 and 15 January 2015, a period of approximately 15 months, the applicant was detained:

(1)    having not made any valid application for a visa;

(2)    with no allegation or admission that he had been the subject of any consideration by the Minister of whether to exercise the power conferred by s 46A(2); and

(3)    having not been taken to a regional processing country under s 198AD(2), on the basis that, as a matter of fact, at no time during this period was it reasonably practicable to do so (whether for the reasons advanced by the applicant in his ASOC, or those advanced by the Commonwealth in its Defence).

17    It would appear that some or all of the propositions in [16] apply to the group members as well.

The class

18    The class-action is brought on behalf of the applicant and every other person who (at [2] of the ASOC):

a.    between 27 August 2011 and 25 February 2020 inclusive (the Relevant Period) was in detention for more than two working days in any part or parts of Australia purportedly pursuant to s 189 of the Migration Act 1958 (Cth) (Migration Act);

b.     was not detained because that person held a visa under the Migration Act that was cancelled or purportedly cancelled under the Migration Act;

c.    did not, at any time after arriving in Australia, return voluntarily to their country of origin or former habitual residence;

d.     was not at any time since 27 August 2011 removed from Australia to that person's country of origin or former habitual residence without later re-entering Australia;

e.    was not detained after being a lawful non-citizen (as defined in s 13 of the Migration Act) who remained outside detention without a valid visa, unless that person was, at any later time, granted a visa described in s 35A of the Migration Act; and

f.     has not, at any time, received an adverse security assessment under the Australian Security Intelligence Organisation Act 1979 (Cth),

(collectively, Group Members).

19    The group members are then divided into three subgroups:

(1)    Minor group members, being people who had not reached the age of 18 years during the relevant period;

(2)    Designated Regional Processing Cohort (DRPC) group members, being group members who met the definition of “offshore entry person” or “unauthorised maritime arrival” (whichever was applicable under the Migration Act when they arrived in Australia);

(3)    Visa group members, being persons who were released from detention because they received a visa under the Migration Act.

The applicant’s allegations

20    The applicant contends that detention of each of these subgroups was only lawful so long as particular purposes were being “pursued and carried into effect”.

21    In the case of the Visa group members, the purpose of detention is said to be to do those things necessary to determine whether a person should be allowed to apply for or be granted a visa. The applicant calls these “the visa purposes”. He contends that detention of the Visa group members was only lawful so long as one of the visa purposes was being “pursued and carried into effect as soon as was reasonably practicable.” The applicant contends that the time in which it was reasonably practicable to carry these purposes into effect in respect of each Visa group member is fixed at some amount of time between 48 hours and 6 months, the time periods being pleaded in the alternative. In any case, save for a few exceptions outlined in the ASOC, at the point that the length of detention exceeds the length of time said to be reasonably practicable, the detention is contended to become unlawful.

22    In the case of the DRPC group members, the purpose of detention is alleged to be to remove each of them to a regional processing country pursuant to Div 8, Subdiv B of the Migration Act. The applicant calls this ‘the removal purpose.” The detention of each DRPC group member is said to be lawful only as long as the removal purpose was pursued and carried into effect as soon as reasonably practicable “and/or capable of fulfilment.”

23    Rather than provide a range of periods within which the applicant contends that this purpose ought to have been achieved, the applicant contends that there was no point during the relevant period at which the removal purpose was capable of fulfilment, or reasonably practicable. First, he says that this is so because to take any of the DRPC group members (including the applicant) to a regional processing country would have exposed them to serious harm as a result of the conditions in which immigration detainees were held in PNG and Nauru. The applicant has identified various categories of harm he says could have occurred at [25] of the ASOC:

i.     being required by law on arrival in that country to be detained in a regional processing centre indefinitely;

ii.     the threats, harassment and other mistreatment made against those removed there as members of the particular social group of people seeking asylum who had been transferred from Australia, such mistreatment including:

1. rape;

2. sexual abuse;

3. violent physical attacks;

4. verbal abuse; and

5. threats of any of the above; and/or

iii.     weak and/or absent state institutions, including at times police and/or any judiciary;

iv.     the absence of any, or any appropriate, accommodation, including by reason of:

1. being accommodated in a tent or marquee without air-conditioning that was exposed to direct, equatorial sunlight approximately 12 hours each day and tropical rain;

2. having shared ablution facilities that were not always private;

3. being required by law to reside in places where there was no, or only limited, effective shelter from the equatorial sun and tropical rain; and/or in circumstances where both regional processing countries permitted people taken to each country from Australia to reside only on a small, remote island with generally poor infrastructure

24    As a result of these categories of harm, the applicant contends that to take him, and any of the group members to a regional processing country would have amounted to refoulement, and so be in breach of Australia’s international non-refoulement obligations.

25    Next, in the same set of particulars, the applicant contends it was not reasonably practicable to take him and the DRPC group members to a regional processing country because:

(a)    he and the DRPC group members would have been unlawfully detained in both Nauru and PNG, by reason of the constitutional prohibitions on such detention under domestic law in each country (particular b);

(b)    he and all DRPC group members who were minors would have been detained beyond the control of the Commonwealth such that they would not be detained only as a measure of last resort, as intended by s 4AA of the Migration Act (particular c); and/or

(c)    with respect to the applicant and all DRPC group members who were families with children, pregnant or carrying a blood borne virus, neither regional processing country had adequate facilities to accommodate that family (particular d).

26    The applicant says that as a result of all these factual matters (some also involving, he accepts, questions of law), the removal purpose was never capable of fulfilment. If not capable of fulfilment, removal could never be described as reasonably practicable. Even if “capable of fulfilment” is not the correct legal approach, the applicant contends that the removal purpose was not pursued and carried into effect, and accordingly the detention of the DRPC group members was unlawful. On this aspect of his pleading, as senior counsel confirmed during argument, the unlawful detention is likely to have commenced shortly after the initial detention, since all these factual matters were systemic or generally applicable matters existing on the applicant’s case at the time the applicant and the DRPC group members were first detained.

27    Regardless of whether the contentions at [25] of the ASOC are accepted, at [26] the applicant pleads that

the removal purpose was never pursued and carried into effect by the Commonwealth as soon as reasonably practicable.

28    As I have explained above, the Commonwealth pleads and admits that it was never reasonably practicable between 11 October 2013 and 15 January 2015 to take the applicant to either PNG or Nauru, but for a different combination of factual explanations than those asserted by the applicant (although there is a small overlap where some factual explanations are agreed – e.g, pregnant women were not being taken to Nauru).

29    Some of the group members fall into both the Visa group member and DRPC group member subgroups. The argument applies to these people such that if one or the other of the visa purposes or the removal purpose is being pursued and carried into effect as soon as reasonably practicable in respect of a group member, their detention remains lawful. When neither kind of purpose continues to support the detention, the detention is allegedly unlawful.

The Commonwealth’s Submissions in summary

Summary dismissal

30    The core of the Commonwealth’s submission for summary judgment is that the applicant’s case has no reasonable prospects of success because the Migration Act does not require that detention be justified by the “active pursuit of particular purposes” in order for it to be lawful. Further, the Commonwealth contends that the result of Al-Kateb v Godwin [2004] HCA 37; 219 CLR 562 is that detention may be authorised by the Act regardless of whether it is reasonably practicable or likely to become reasonably practicable to remove a person from Australia.

31    The Commonwealth's position, as expressed at [19(d)] of its Defence, is that

[D]etention of unlawful non-citizens under s 189 of the Migration Act is authorised and required, and in that sense “lawful” until:

(i) a detaining officer no longer holds the relevant knowledge or reasonable suspicion that the person is an unlawful non-citizen; or

(ii) one of the events in s 196(1) of the Migration Act occurs.

32    The Commonwealth, correctly, characterises the applicant’s case as one focused on the length of detention. It contends this misunderstands the link between the permissible constitutional purposes for detention which render the Act’s provisions within the legislative power of the Commonwealth, and the lawfulness of detention pursuant to those provisions. Authority for executive detention is confined to detention for certain purposes, including the purposes ‘embedded in’ the Migration Act. Detention is therefore lawful when it is authorised by the Migration Act. The “end points” of lawfulness are, the Commonwealth contends, set out in s 196 of the Act. Section 196(1) of the Migration Act requires that an unlawful non-citizen detained under s 189 of the Act must be kept in detention until:

(a)    They are removed from Australia, including removal to a regional processing country under s 198AD(3) of the Act;

(b)    They are deported under s 200; or

(c)    They are granted a visa.

33    Duration of detention is thus irrelevant; assuming the applicant was taken into detention lawfully, detention will be lawful until one of the end points in s 196(1) is reached. On the Commonwealth’s submission, there are no other considerations to be taken into account.

34    Contrary to the applicant’s understanding of Plaintiff S4 of 2014 v Minister for Immigration and Border Protection [2014] HCA 34; 253 CLR 219 the Commonwealth contends the requirement identified in that case, that consideration of whether to allow a person to apply for a visa be completed ‘as soon as reasonably practicable’, did not concern the lawfulness of any individual’s detention at any point in time. Rather, the Court found the statutory scheme does not exceed the limit found in Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs [1992] HCA 64; 176 CLR 1 as it does not permit the Executive to take as long as it likes over that consideration. The references in the reasons to “unlawfulness” need to be read in that context, the Commonwealth submits. The remedy for excessive delay is therefore mandamus, not habeas corpus, because the detention is at all times lawful.

35    Plaintiff S4 has not affected, or modified, the law as stated in Al Kateb. It follows, the Commonwealth contends, that the applicant has no reasonable prospects of establishing that he or any of the group members were at any point unlawfully detained, nor of succeeding on his cause of action for false imprisonment.

Strike out application

36    The Commonwealth alternatively seeks to have the material portions of the ASOC struck out under r 16.21 of the Rules, on several bases.

37    First, the Commonwealth says the following aspects of the pleading are contrary to law or to a proper construction of the Migration Act or both.

(1)    The applicant’s pleading at [24(b)] of the ASOC implies that whether a removal purpose was “capable of fulfilment” may determine the lawfulness of detention. The Commonwealth submits this concept is irrelevant and to the extent that it is relevant, forms part of the question of whether removal is ‘reasonably practicable’. The pleading in [24(b)] therefore has no basis in law.

(2)    The applicant’s pleading at [25(a)] of the ASOC that, after 12 August 2012, the removal purpose was not reasonably practicable because removal of the applicant or any DRPC group members to a regional processing country would amount to refoulement is wrong in law. On the Commonwealth’s submission, the consequences of removal, including whether removal would amount to refoulement, are not relevant to whether removal is reasonably practicable. This is because the consequences of removal are “not a practical consideration going to the ability to remove from Australia.” The Commonwealth cited NATB v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 292; 133 FCR 506 and Beyazkilinc v Manager, Baxter Immigration Reception and Processing Centre [2006] FCA 1368; 155 FCR 465 as authorities for this proposition. Further, international obligations do not operate as a limitation on taking a person to a regional processing country under the authority provided in the Migration Act.

(3)    The applicant’s pleading at [25(b)] of the ASOC misunderstands the relevance of the lawfulness of detention in regional processing countries (under international law or the domestic law of another country) to the question of reasonable practicability. Paragraph 25(b) contends that the removal purpose was not capable of fulfilment or not reasonably practicable to pursue or both because removal would mean that the DRPC group members would be unlawfully detained on arrival in PNG or Nauru. The Commonwealth submits that after Plaintiff S195/2016 v Minister for Immigration and Border Protection [2017] HCA 31; 261 CLR 622, it is clear that the executive power of the Commonwealth is not limited by international law or the domestic law of another country, and that therefore the fact that detention in a regional processing country may be contrary to either legal system says nothing about whether removal is reasonably practicable.

(4)    The applicant’s pleading at [25(c)] of the ASOC, relying on s 4AA of the Migration Act, has no basis in law. The Commonwealth contends s 4AA does not give rise to an actionable statutory duty and cannot support an allegation that removal and detention of a minor would be unlawful by reason of “non-compliance” with that provision. The pleading therefore is contrary to authority.

38    The Commonwealth also submits these pleadings should be struck out because they are embarrassing. By “embarrassing”, the Commonwealth submits they are “unintelligible, ambiguous, vague or too general, so as to embarrass the opposite party who does not know what is alleged against him”: Priest v New South Wales [2006] NSWSC 12 at [34].

39    Secondly, the Commonwealth submits:

(1)    Paragraphs [2] and [5] of the ASOC should be struck out because the applicant fails to plead a case for all persons falling within the group definition. While the pleading purports to capture all persons who met the group criteria in [2] within the specified period, persons who arrived after 27 August 2011 but before 12 August 2012 will not fall into the DRPC group, and if they were not granted a visa, they will not fall into the Visa group. If any such persons exist, there is no pleaded claim on their behalf. As a result the claim does not comply with s 33H of the Federal Court Act.

(2)    The time periods the applicant pleads at [21] of the ASOC are hypothetical and have no basis in law. The Commonwealth submits it is not clear why the time periods pleaded were chosen, or how the Court should choose which applies. There is therefore no basis on which the Commonwealth can understand and respond to the allegation about reasonable practicability.

The Applicant’s Submissions in summary

Summary dismissal

40    The applicant contends that the interpretation of Al-Kateb relied on by the Commonwealth must be read with the subsequent authority of Plaintiff S4. There are limits to the duration of detention, and they are set, conformably with the applicant’s contentions about Plaintiff S4, by reference to the period of time in which it is “reasonably practicable” to perform a duty or exercise a power conferred, being those duties and powers which are necessary or incidental to the purposes for which detention has been authorised. The applicant contests the Commonwealth’s interpretation of the Court’s reasoning in Plaintiff S4, and says that [35] of Plaintiff S4 is “directly responsive” and a “complete answer” to the Commonwealth’s submission that detention under s 189 is both lawful and required for as long as it takes for the Minister to effect one of the endpoints to detention contemplated in s 196.

41    That an administrative remedy such as mandamus may have been open to the group members during any detention does not preclude a cause of action for habeas corpus or false imprisonment. The applicant contends that this kind of action is “envisaged by the High Court in both Plaintiff M76 and Plaintiff S4”.

42    It is not the case that as long as detention is lawfully commenced under the Migration Act that it remains lawful until it ends. It is also not the case that because the provisions of the Migration Act are constitutionally valid, any detention purportedly pursuant to their express terms is lawful.

43    The applicant distinguishes this case from Al-Kateb on the basis that amendments to the Migration Act have changed the Minister’s powers and obligations since that case was decided. The apparent tension between Al-Kateb and Plaintiff S4 is resolved by recognising that they dealt with the application of the same legislation to different factual circumstances; the applicant says that this matter is different again. Those authorities will need to be applied by the Court after its fact finding at trial. While the applicant accepts there may be some difficulty in reconciling the two cases, the applicant submits that is part of the Court’s task at first instance.

44    The applicant expressly preserves a contention that Al-Kateb was wrongly decided and Plaintiff S4 should be taken to have overruled it, recognising this is not a matter for this Court at first instance.

Strike out application

45    The applicant contends that despite the Commonwealth’s submission that the ASOC is not sufficiently clear, its defence as pleaded demonstrates that it has understood the case alleged against it. In answer to the Commonwealth’s arguments for strike-out, the applicant submits:

(1)    While the phrase “capable of fulfilment” is not used in the Migration Act, the phrase is used in several authorities that describe the nature of the obligation to act “as soon as reasonably practicable”. As a judicial explanation of at least an aspect of the content of the statutory phrase, it is permissible for it to be used in a pleading.

(2)    Reading s 198AD(11) with s 197C makes plain that a person cannot be sent to a regional processing country under s 198AD in breach of Australia’s non-refoulement obligations. Section 197C applies to removal to any country other than a regional processing country, and in contrast and by implication non-refoulement obligations apply to the taking of a person to a regional processing country. Whether Australia could comply with those international obligations if the duty in s 198AD(2) were performed, because of the conditions and circumstances prevailing in Nauru and PNG informs, the applicant contends, the ultimate finding of whether it was reasonably practicable to perform the duty.

(3)    In the same way, in its pleaded case, the applicant does not contend that s 4AA gives rise to an independent, actionable statutory duty. Rather, the applicant contends that s 4AA, as part of the factual and legal context in which the s 198AD(2) duty comes to be performed, also informs the finding of whether as a matter of fact it was reasonably practicable to take the applicant, as a child, to Nauru. The applicant contends it would not be reasonably practicable to take a child to be detained in a place “beyond the control of the Commonwealth” in light of the intention expressed in s 4AA, because the Commonwealth cannot ensure that the detention is only of last resort.

(4)    In response to the Commonwealth’s submission that there are group members who are left without a pleaded claim, the applicant says it is not clear there are any group members who do not fall into either the DRPC group or Visa group. Even if there were, the pleadings include a general allegation (at [28]-[29]) that there was no purpose for their detention, and so the detention was unlawful.

(5)    The range of temporal limits provided by the applicant in [21] is an orthodox way of formulating pleadings in time-related claims. The pleading captures a range of potential durations that could be considered by the Court to be “as soon as reasonably practicable”. Ultimately it is the Court’s task to make findings on the evidence about this question, which is at least a mixed question of law and fact.

Resolution

Summary judgment

46    The parties were not apart on the applicable principles in relation to both summary judgment and the striking out of pleadings, and they need not be set out. Rather, the parties differed in their emphasis on the appropriate circumstances for the power in s 31A of the Federal Court Act to be exercised. By reference to the reasons of Gordon J in Jefferson Ford Pty Ltd v Ford Motor Company of Australia Ltd [2008] FCAFC 60; 167 FCR 372 at [131], the Commonwealth encouraged the Court to take a robust approach to the determination of what it accepted was an important question of law, submitting that the answer to the question was plain on the authorities as they stand and therefore it was in the interests of the administration of justice, and consistent with s 37M of the Federal Court Act, for the matter to be decided by way of summary judgment.

47    In contrast, the applicant encouraged the Court to view the resolution of this application through the prism of the Court’s role as a trial Court, making the necessary findings of fact to provide the platform for the resolution of his legal arguments, and then resolving those legal arguments, which he contends on any view are sufficiently cogent to resist summary dismissal. If after the facts are fully found, the application of the law to those facts does not fall in favour of the applicant, the applicant contends the Court will have laid a proper foundation for a reconsideration of the law on appeal, and in that way, the Court ensures that there is no stultification of the kind referred to by French CJ and Gummow J in Spencer v Commonwealth of Australia [2010] HCA 28; 241 CLR 118 at [25].

48    I accept the applicant’s argument. In my opinion although the Commonwealth’s contention about the proper construction s 196 has force, there is sufficient cogency in the applicant’s competing arguments that it is appropriate to allow the matter to proceed to trial, and for the Court to perform its function as the finder of fact at trial, so that an adequate foundation is laid not only for its own consideration of the application of the law to the facts as found, but for consideration by appellate courts. That is the process which occurred in Al Kateb. I accept, as the parties’ arguments also appeared to do, that it is highly likely this proceeding will not conclude after a first instance judgment and orders.

49    A further general factor which has weighed in my decision is that the allegations made in this proceeding are, in the context in which they have been raised, novel. None of the authorities on which the Commonwealth relies has considered the question of unlawful detention in this kind of context. Indeed, of the recent High Court authorities which featured prominently in the Commonwealth’s arguments (not including Lim) only Al-Kateb involved a central allegation of unlawful detention, and the arguments in the High Court in that case rested on a factual finding at trial that it was not reasonably practicable to remove Mr Al-Kateb, at a point at which he had exhausted his options for seeking to be granted a visa in Australia and had requested removal from Australia. The applicant’s case is quite different, and it concerns a circumstance which was a feature of the administration of the Migration Act for a considerable period of time: the executive detention of individuals without the bar to a visa application in s 46A being lifted, without them being taken to a regional processing country, and without removal. That is not to say, of course, that facts control the construction of the legislative scheme. Rather, facts throw up for consideration how it is that the legislative scheme is designed or intended to apply to those facts. That is the applicant’s point, and I am not prepared to find at a summary judgment stage that it has no reasonable prospects of success.

50    Given the view I have taken, and the fact that I will be hearing and determining the trial, it is not appropriate to express any detailed opinion about the parties’ competing arguments. The Court’s function on the Commonwealth’s application under s 31A and r 26.01(1) is not to determine the correctness of the applicant’s arguments, but only their prospects of being correct.

51    Aside from the matters to which I have referred above, I have also relied on the following matters.

52    While there may well be circumstances where it is appropriate for the Court summarily to hear and determine “a disputed point of law” (Gordon J’s phrase in Jefferson Ford at [131]), I do not understand her Honour to be saying that in all circumstances a disputed question or point of law which might be critical to the outcome of a proceeding should be determined under s 31A. The more confined the question or point, the more susceptible it may be to summary determination. However, much will also depend on whether the point or question is novel, what is at stake for the parties, and the cogency of the parties’ arguments on each side of the question. There are no bright lines.

53    The current dispute about whether the relevant provisions of the Migration Act (whether only s 196 or others as well) should be construed as impliedly limiting the duration of lawful detention is not a confined question. It concerns one of the most fundamental rights recognised by the common law, and it concerns the nature and extent of the supervisory power of the judicial branch over the circumstances in which the Executive can interfere with that right. It concerns what was meant by the series of propositions in Plaintiff S4 at [24]-[35], which on the applicant’s case create significant tension with the Court’s previous decision, by majority, in Al-Kateb, but with which, on the Commonwealth’s case, Al-Kateb fits harmoniously. The position would, in my respectful opinion, have to be unmistakably clear before these kinds of questions of law could be decided summarily under s 31A. I am satisfied the existing High Court authorities (in particular, Plaintiff S4, but also Plaintiff M76 v Minister for Immigration, Multicultural Affairs and Citizenship [2013] HCA53; 251 CLR 322 at [183], Plaintiff M96A of 2016 v Commonwealth [2017] HCA 16; 261 CLR 582 at [19], [32]) do not reach that level of clarity.

54    Plainly, what was said by the High Court in Lim itself will need to be explored in order to resolve the parties’ contentions. It will be recalled that the key provision in issue in that case was the then s 54R of the Migration Act, which provided:

A court is not to order the release from custody of a designated person.

55    Although there is no equivalent provision to s 54R in the current legislative scheme, as I understood senior counsel for the applicant to submit in oral argument, this is the effect of the Commonwealth’s contentions. Of course, on the Commonwealth’s argument, the custody being at all times lawful, the Court’s observations in Lim about a construction which would be incompatible with Ch III judicial power are not relevant. Therein lies one of the matters for the Court to resolve.

56    In relation to the Full Court’s decision in ASP15 v Commonwealth [2016] FCAFC 145; 248 FCR 372, I do not accept the Commonwealth’s submission that the ratio of that case binds me, as a single judge, to find in favour of the Commonwealth on its summary judgment application. ASP15, like this proceeding, involved an allegation of false imprisonment, and a claim for damages by two brothers. The unlawful imprisonment was said to be for a period of approximately 14 months from dates in October 2014 through to December 2015. The Full Court described the claim in the following way (at [3]):

The central factual and legal issues in the Court below and on appeal to this Court relate to the delay in determining the appellants’ visa applications. Each of the appellants asserts that the delay in being granted a visa and thereby in being released from immigration detention exceeded the authorisation under the Migration Act 1958 (Cth) to detain them. They claim this unlawful detention constituted the tort of false imprisonment, rely in particular on their period in detention between October 2014 and December 2015, and seek damages from the Commonwealth (the first respondent) and from the Minister. Because of their release from detention after the primary judge handed down his decision, the issue of a remedy to secure their release became moot.

57    The Court then summarised the respondents’ contention (at [4]):

The respondents’ primary response is that even if a delay exceeds the time within which a visa decision is required to be made, the relevant remedy is to seek a writ of mandamus. It is submitted that on the proper construction of the relevant provisions of the Migration Act a delay beyond the time required to make a decision does not result in the detention being unlawful, such that no issue of false imprisonment arises.

58    The Full Court distinguished Plaintiff S4 in the following way (at [38]-[40]):

The duration of the detention in Plaintiff S4 was bounded by the requirement in s 198(2) to effect the detainee’s removal “as soon as reasonably practicable” if nothing else happened (such as the exercise of the power in s 46A(2)). It was in that context at [35], that s 198(2) was regarded as applying the principles in Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at [70]. And it was only in that context that detention beyond the s 198(2)-sourced requirement to make the decision under s 46A(2) “as soon as reasonably practicable” could become unlawful.

Here, unlike in Plaintiff S4, the power under s 46A had already been exercised. Both appellants had been able to make, and had made, valid protection visa applications. No complaint was made about the time taken to make the s 46A(2) decisions. The obligation under s 198(2) was never triggered. It follows that there was no occasion for the terms of s 198(2) to have any effect on s 196(1), let alone dominant effect. The reasoning in Plaintiff S4 does not assist in this case, and does not overcome the reasoning of the majority in Al-Kateb.

It follows that once a valid visa application has been made, unless and until a decision is made either to grant or refuse a visa, detention is authorised and required by s 196(1). This conclusion is consistent with the binding authority of Al-Kateb as to the nature of lawful detention and the meaning of s 196(1). None of the authorities relied upon by the appellants compels a different conclusion. Such detention does not cease to be for the purpose of considering and determining an application for a visa because the necessary process has not been completed within the time required by the Migration Act, be that time period express or implied. If in fact a court determines that the process to make a visa decision has gone on for too long, it nonetheless remains detention for that purpose and is both validly authorised and required by s 196(1) of the Migration Act. The normal remedy is court action to compel a visa decision to be made, one way or the other.

59    It is reasonably arguable (and I need find no more than that at this stage) that the ratio of ASP15 is confined to circumstances set out in these passages: namely, where the bar in s 46A has been lifted and a person has a visa application under consideration.

60    Accordingly, the Commonwealth’s application for summary judgment must be dismissed.

The strike out application

61    I also reject the Commonwealth’s contentions on strike out.

62    Even taking account of “modern” case management (whatever that means) the authorities nevertheless emphasise that pleadings must still fulfil the “basic functions” of identifying the issues between the parties, disclosing an arguable cause of action or defence (as the case may be), and ensuring parties are apprised of the case to be met: see Martin CJ in Barclay Mowlem Construction Ltd v Dampier Port Authority [2006] WASC 281; 33 WAR 82 at [7], extracted in Gilmour J’s reasons in Oswal v Apache Corporation (No 3) [2014] FCA 835 at [8]. Justice Macaulay acknowledges those basic functions in Andrianakis v Uber Technologies (Ruling No 1) [2019] VSC 850 at [38]. Justice Weinberg also referred to these basic functions in McKellar v Container Terminal Management Services Ltd [1999] FCA 1101; 165 ALR 409 at [22], quoting a decision of Goldberg J in Mitanis v Pioneer Concrete (Vic) Pty Ltd (1997) ATPR 41–591 at 44,151ff. The passages from the reasons of Mason CJ and Gaudron J in Banque Commerciale SA (En Liqn) v Akhil Holdings Limited [1990] HCA 11; 169 CLR 279 at 286-287 emphasise these as the basic functions of a pleading.

63    At a general level, I accept the applicant’s submissions that an assessment of the Commonwealth’s defence discloses the Commonwealth does not appear to have had any difficulty in understanding the case as pleaded.

64    Further, the Commonwealth has the benefit of the applicant’s concise statement, originally filed in the former proceeding in this Court but by this Court’s orders, subsequently treated as filed in this proceeding. Senior counsel for the Commonwealth opened by reference to this document as disclosing a summary of the applicant’s case, and I am satisfied the Commonwealth well understands the case it has to meet. It will not be precluded from seeking further clarification as the case progresses and the Court will of course ensure that it has sufficient and adequate notice of the applicant’s case to advance and present its defence on the facts and on the law.

The ‘capable of fulfilment’ argument (ASOC [24])

65    I accept the applicant’s submissions that the allegation that a purpose of detention is not “capable of fulfilment” is arguably capable of informing the answer to the statutory question the applicant contends is posed in the proceeding; namely whether detention has gone beyond the time where a legitimate purpose of executive detention is being pursued. Its use in a number of decisions about the lawfulness of detention (collected by the applicant in his footnotes at [19] of the ASOC) gives it a sufficient basis to allow the pleading to stand.

The reasonably practicable pleadings at ASOC [25(a)]-[25(c)]

66    While the Commonwealth’s criticism of the pleadings in these paragraphs may prove well founded, I accept the applicant’s contention that they are ultimately factual issues about the absence of any reasonable practicability in taking him (and group members) to either PNG or Nauru. As I have set out above the Commonwealth itself pleads a number of factual matters which it contends made performance of the duty in s 198AD not reasonably practicable at any relevant time. I see no basis why the applicant’s competing contentions about what the matters were that, in fact, rendered that duty incapable of performance, should not be considered at trial, even if as the Commonwealth submits there are some legal challenges associated with them. These paragraphs are not properly described as “embarrassing”.

The group member argument

67    I accept, as the Commonwealth submitted, that the variations in dates and other factors between [2] of the ASOC on the one hand and the sub-group definitions in [4]-[6] on the other, may mean there are individuals who fall outside all of the sub-groups. Both parties appeared to accept it is not possible as yet to know if there are in fact such people, or whether the problem is theoretical. That of itself is sufficient reason for this objection to the way the pleadings are framed to be dismissed. If, for the purposes of compliance with the opt out regime, or for some other reason, the distinctions between the definition of the group in [2] and the sub-groups in [4]-[6] has a practical and material effect on the conduct of the proceeding, or on the Commonwealth’s ability to understand the case it has to meet, then the matter will be dealt with.

68    Further, as the applicant contended in his written submissions, there is a pleading at [28] of the ASOC that

DBE17 and the Group Members were detained for the visa purposes and/or the removal purpose, and for no other purpose.

69    In other words, in relation to any group members who fall outside the sub-groups specified, the applicant contends there was no other lawful purpose for their detention. In due course, once it has been ascertained whether in fact there are any such individuals who fall within the definition in [2] but outside the sub-groups, the Commonwealth may be entitled to seek either further particulars, or to require the applicant to amend his pleading to set out in more detail how the case is put in respect of such people. That can be dealt with in the course of case management.

The time period argument (ASOC [21])

70    The eight time periods pleaded in the alternative at [21], reflect the applicant’s identification of the spectrum of time in which it would be ‘reasonably practicable’ for the visa purpose to be pursued and carried into effect. There is nothing intrinsically impermissible in such a pleading, as the applicant submits. Indeed, it is to be expected that a person in the applicant’s position might plead a range of factual periods as “reasonably practicable” periods, given the “information asymmetry” (see Webster (Trustee) v Murray Goulburn Co-Operative Co. Limited (No 2) [2017] FCA 1260 at [6]) between the applicant and the Commonwealth about visa processing methods.

Conclusion

71    The interlocutory application will be dismissed. There is no apparent reason why costs should not follow the event, but the parties will be given some time to attempt to agree orders on costs, and in the absence of agreement, an opportunity to file short submissions on the question.

72    Given the delays which have been occasioned by the debates over jurisdiction and the remitter processes, it is my present view that the matter should go to trial as expeditiously as possible. The proceeding will be listed for a case management hearing at an early date convenient to the parties and the Court. The parties will be expected to work co-operatively in the interim to propose a set of orders to prepare the matter for trial.

Associate:

Dated:    10 July 2020