DBB16 v Commonwealth of Australia

ORDERS

THE COURT ORDERS THAT:

1. The application be dismissed.

2. The applicant pay the respondent’s costs as agreed or taxed.

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

REASONS FOR JUDGMENT

RAPER J

1. By application dated and filed on 5 March 2021, the applicant seeks a declaration that “for a period of six months and seven days, the applicant’s detention was not authorised by the Migration Act 1958 (Cth) (the Act)” and claims associated general, special, aggravated and exemplary damages for false imprisonment against the Commonwealth of Australia.

2. The applicant alleges his detention for that period was unlawful because the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs had exercised a discretionary personal power available to him under s 195A of the Act to grant the applicant two visas valid for a period of six months and seven days, commencing on 24 July 2019 or, alternatively, on 24 September 2019 (the relevant period). The applicant alleges that the decision was effected by the Minister signing a decision instrument (extracted at paragraph 9 below). However, the applicant was not released from immigration detention nor notified at the time of the fact of the decision.

3. The Commonwealth contends that the appellant’s detention during the relevant period was both authorised and required by ss 189(1) and 196(1) of the Act for three reasons. First, the applicant’s detention was at all times lawful by reason of the operation of s 189(1) of the Act: The relevant detaining officers reasonably suspected that the applicant held the status of being an “unlawful non-citizen” (whether or not in fact the applicant was an unlawful non-citizen). The Commonwealth submitted that if the Court is so satisfied on this issue, the Court need go no further in its deliberations. If the Court is not so satisfied, then secondly, the Minister’s “act of mistakenly signing the decision instrument” cannot be regarded as a “substantive exercise of the power” conferred by s 195A(2), and thirdly, to the extent that by the Minister’s inadvertent actions on 24 July 2019 it were found that the Minister did in fact intend to exercise the power conferred by s 195A, that exercise was not complete and thus was not “beyond recall”. This being so because prior to any external notification of a decision having been made under s 195A, there was no final “decision” to which the Act might attach legal consequences.

4. This matter comes before this Court in its original jurisdiction, conferred by s 39B(1A)(c) of the Judiciary Act 1903 (Cth), to hear and determine a claim for damages for the tort of false imprisonment arising from detention. Whether a person was acting or purporting to act under the authority of the Act is a matter arising under a Commonwealth statute and any claim for associated damages would fall within the Court’s original jurisdiction: Fernando v Minister for Immigration and Citizenship [2007] FCA 1203; 165 FCR 471 at [18]. The jurisdictional limitations imposed by s 476A(1) of the Act, which state that the Federal Court has original jurisdiction in relation to a migration decision if, and only if, one or more of the circumstances in paragraphs (a) to (d) are applicable, were intended to apply only to the “challenge by the judicial review processes to migration decisions”: Fernando at [22]. Therefore, s 476A does not fetter the Court’s powers to hear and determine a claim for common law damages for false imprisonment under s 39B(1A)(c): recently reaffirmed in BHL19 v Commonwealth of Australia (No 2) [2022] FCA 313, per Wigney J at [81].

5. The applicant was born in Bangladesh on or about 1 September 1988. On 13 November 2013 the applicant arrived in Australia by boat without a visa. He was immediately detained in closed immigration detention pursuant to s 189 of the Act. From 13 November 2013 onwards, the applicant has continuously remained in closed immigration detention.

6. On 24 July 2019, the Hon David Coleman MP in his capacity as the Minister (Minister Coleman) signed a document titled “Submission for decision PDMS Ref. Number MS19-001205”, bearing the subject line “Possible Ministerial Intervention under section 195A of the Migration Act 1958 in relation to three long term detainees.”

7. The first page is extracted:

8. Relevantly reference is repeatedly made throughout the decision instrument to Annexures B and C. There is no record of there ever being an Annexure C.

9. There was, however, an Annexure B, titled “Exercise of Ministerial Discretion under section 195A of the Migration Act 1958 Decision Instrument”. This is known as the decision instrument. The decision instrument was signed by Minister Coleman and dated either “24/7/2019” or “24/9/2019”. The body of the...