Federal Court held: leaving aside s 196, it is necessary for officers to hold a reasonable suspicion throughout the period of a detainee’s detention under s 189; the reasonable suspicion must be held by the detaining officer; the tasks of the immigration detention centre case managers in this case fell short of what is required for it to be said that they are detaining a person under s 189; the construction of s 196(4) involve reading it as if the words “if the person is detained as a result of the cancellation of his or her visa” read “if the person is on an ongoing continuous basis detained lawfully under s 189 as a result of the cancellation of his or her visa”; and despite the fact that, had the Applicant not been unlawfully detained, he should have been lawfully detained anyway, the Applicant was awarded exemplary damages.
The questions to the Federal Court (FCA) were as follows:
Question 1: If a person is detained by the Minister under s 189 and kept in detention under s 196 of the Migration Act 1958 (Cth), is the onus on the Minister to establish on the balance of probabilities that that person's detention was lawful?
Question 2: In order for the obligation on an officer to detain a person to arise under s 189(1), an officer must either know or reasonably suspect that such a person is an unlawful non-citizen. Is the element that an officer knows that the person is an unlawful non-citizen likely to be satisfied where there is a challenge to the cancellation of the visa?
Question 3: What are the type of matters a Court will consider in deciding whether the suspicion of an officer was reasonable?
Question 4: Can it be said that "under s 189, and leaving aside whatever effect s 196 might have, it is not necessary for an officer or officers to hold a reasonable suspicion throughout the period of a detainee’s detention"?
Question 5: Can it be said that "the reasonable suspicion must be held by the detaining officer and [that] it is not sufficient in order to satisfy the requirements of s 189 that one officer detain and another hold the required reasonable suspicion"?
Background: The FCA said as follows:
34 Ms Green [Acting Director of the Status Resolution Section who had oversight of all the case managers at the CI IDC] said that the role of a case manager involves five broad tasks.
35 First, a case manager undertakes a case review every month and this includes a consideration by the case manager of whether a particular detainee is an unlawful non-citizen within the meaning of that term in the Act.
36 Secondly, a case manager will engage in “escalating cases, where necessary, with other relevant areas of the Department”. Ms Green gave two examples of when this was done. First, a typical example might include fast-tracking a person’s removal from Australia where the person has made a written request for this to occur under s 196(1) of the Act. Secondly, a case manager might escalate a case by taking urgent steps to cross-check a detainee’s status as an unlawful non-citizen where there are doubts as to whether a detainee is an unlawful non-citizen and, therefore, whether the detainee can lawfully be kept in detention.
37 Thirdly, a case manager’s broad tasks include ensuring the detainees they manage have a clear understanding of their immigration status and the progress of their matters.
38 Fourthly, a case manager’s broad tasks include responding to inquiries or investigations from external bodies in respect of a detainee, such as the Commonwealth Ombudsman.
39 Finally, a case manager’s broad tasks include meeting with the detainees as required, including communicating outcomes of visa applications, cancellation decisions and the outcome of Court hearings.
Question: Can it be said that, of the broad tasks undertaken by a case manager, "the only task which might suggest that the case managers detained the applicant is the second task" and that such a task "falls short of what is required for it to be said that they were detaining the applicant", as "there must be an element of control over the applicant’s detention, either as the decision-maker in terms of whether the applicant’s detention continues or a direct involvement in the decision-making process" and as "escalating cases with other relevant areas of the Department does not meet either of those criteria"?
Question 7: If the answer to Question 6 is "yes", can it be said that the Applicant’s detention "in the periods for which there is no evidence from the respondent of a detaining officer (or indeed any officer) holding a reasonable suspicion that the applicant was an unlawful non-citizen, was not authorised by s 189 because that section requires a detaining officer or officers to hold a reasonable suspicion at all times during a person’s detention" and that although each case manager involved "held a reasonable suspicion that the applicant was an unlawful non-citizen within s 189, none of them detained the applicant and the detaining officer is the officer who must have the reasonable suspicion referred to in s 189 of the Act"?
Question 8: Are ss 196(4) and (5)(b) predicated on at least an initial lawful detention under s 189?
Question 9: The Minister's construction of s 196(4) involved reading the words “if the person is detained as a result of the cancellation of his or her visa” as if they read “if the person was detained and the detention was initially lawful under s 189”. Can it be said that the Minister's construction is wrong because although it "would overcome difficulties for a detaining party in cases where it encountered difficulties of proof or where the reasonable suspicion required by s 189 was held by officers, but not by those officers detaining the persons, logically it would also cover cases in which no officer held the reasonable suspicion required by s 189 and furthermore, cases where officers or members of the Department knew or believed that the person detained was not an unlawful non-citizen"?
Question 10: The 2 events s 196(4) refers to, "either of which will bring the detention to an end, are a final determination by a court that the detention is unlawful or a final determination by a court that the person detained is not an unlawful non-citizen". Would the Minister's interpretation of s 196(4) result in the first of those 2 events being "superfluous, void, or insignificant" in that "the first event will never occur on the respondent’s construction because, as a result of that construction, the person’s detention will never be unlawful and this would mean that the only effective terminating event is the second one"?
Question 11: Does the principle of legality support the Applicant's construction of s 196(4) that involves reading s 196(4) as if the words “if the person is detained as a result of the cancellation of his or her visa” read “if the person is on an ongoing continuous basis detained lawfully under s 189 as a result of the cancellation of his or her visa”?
Question 12: Can it be said that, "whether the assumption or principle of legality will be relevant where the constructional choice involves the extent of the abrogation or curtailment (and not whether the legislation affects an abrogation or curtailment) will depend on the circumstances of the case" and that:
- "If the extent of the abrogation or curtailment is significantly different, or the nature of the abrogation or curtailment is significantly different as between the competing constructions, then the principle of legality may operate"; and
- "In other cases it may, in all the circumstances, be of little significance"?
Question 13: In determining whether to adopt the Applicant or the Minister's construction of s 196(4), can it be said that, "where there is a constructional choice that would place the statute within the limits of constitutional power and another that would place it outside those limits, the former is to be preferred"? In other terms, is there an "initial presumption that Parliament did not intend to pass beyond constitutional bounds"?
Question 14: If the answer to Question 13 is "yes", should courts nonetheless "not strain to give a meaning to statutes which is artificial or departs markedly from their ordinary meaning simply in order to preserve their constitutional validity"?
Question 15: If the answer to Question 14 is "yes", can it be said that the principle does operate in this case because the construction advanced by the Applicant is not “artificial or departs markedly from their ordinary meaning” and does not involve any more of a “judicial gloss” than that advanced by the Minister?
Question 16: Can it be said that the continuing detention of a person is "authorised and required by s 196(1) of the Act, irrespective of whether there [is], on an ongoing basis, an officer detaining [that person] who had a reasonable suspicion that [that person] was an unlawful non-citizen within s 189"?
Question 17: Is s 196 restricted to persons who are unlawful non-citizens?
Question 18: Does Ruddock v Taylor support the inference that, "if an officer held a reasonable suspicion at the time a person was detained, that reasonable suspicion may continue to exist"?
Question 19: Is it wrong to say that a person is detained under s 189(1) and then kept in detention under s 196(1)? In other words, can it be said that, rather, a person is detained and kept in detention under s 189(1) with the period of detention being fixed by s 196(1)?
Question 20: If the answer to Question 16 is "no", can it be said that "it would be “odd and unlikely” that Parliament would have intended s 196(1) to have a “radically different operation” from s 196(4) as they both appear as a single section under the heading, “Duration of Detention”", with the result that, "implicit in s 196(4) is the element of an ongoing satisfaction of the requirements of s 189 and not merely satisfaction of the requirements of s 189 at the initial detention stage"?
Question 21: Can it be said that "the construction of s 196(4) and (5)(b) advanced by the [Minister] results in constitutional invalidity to the extent that it means that the ongoing detention was authorised without an accompanying ongoing reasonable suspicion that the person is an unlawful non-citizen by the detaining officer"?
Question 22: Was the Applicant unlawfully detained for the period commencing at some time in the afternoon or evening of 9 June 2016 and ending at 12.26 pm on 16 September 2016 and the period commencing at an unknown time shortly after 12.26 pm on 16 September 2016 and ending on 12 February 2018?
Question 23: Can it be said that the tort of false imprisonment is "actionable per se and, even if the plaintiff fails to prove loss or damage, he or she is entitled to nominal damages"?
Question 24: In determining whether a plaintiff is entitled to compensatory damages (as opposed to only nominal damages), should a court consider what would have occurred in the event that the wrongdoer acted lawfully?
Question 25: If the answer to Question 24 is "yes", in determining what would have occurred in the event that the wrongdoer acted lawfully, should a court rely on the provisions of the Act rather than evidence?
Question 26: Can it be said that, where there is a power, but no obligation, to detain, one does not, for the purposes of considering what would have occurred in the event that the wrongdoer acted lawfully, "simply assume that the power will be exercised and exercised lawfully"?
Question 27: If the answer to Question 26 is "yes", can it be said that in this case the the detainer would have had a correct appreciation of the law and would have acted accordingly, because there was a duty, not merely a power, under s 189 to detain?
Question 28: Can it be said that "damages, other than nominal damages, for the vindication of the plaintiff’s right not to be falsely imprisoned are not part of compensatory damages, at least in a case where the plaintiff could and would have been detained in any event"?
Question 29: If the answer to Question 28 is "yes", can it be said that, "assuming no compensatory damages are awarded, there is nevertheless room for an award of vindicatory damages in a case where nominal damages are awarded because the plaintiff could and would have been detained in any event"?
Question 30: If the Applicant was entitled to compensatory damages, what amount would be appropriate?
Question 31: What is the difference between aggravated damages and exemplary damages?
Question 32: If the Applicant is not entitled to compensatory damages, can a claim for aggravated damages succeed?
Question 33: Is the Applicant entitled to exemplary damages for his unlawful detention even if he should have been lawfully detained anyway?
The FCA answered those questions as follows:
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