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Federal Court of Australia - Full Court Decisions |
Last Updated: 22 January 2003
Goldie v Commonwealth of Australia [2002] FCA 433
The Federal Court adopted a new medium neutral citation (FCAFC) for Full Court judgments effective from 1 January 2002. Single Judge judgments will not be affected and will retain the FCA medium neutral citation.
The transitional arrangements are as follows:
* All Full Court judgments delivered prior to 1 January 2002 will retain the FCA medium neutral citation.
* All Full Court judgments delivered between 1 January 2002 to 30 April 2002 have been assigned parallel medium neutral citations in both the FCA and FCAFC series.
* All Full Court judgments delivered from 1 May 2002 will contain the FCAFC medium neutral citation only.
Goldie v Commonwealth of Australia [2002] FCAFC 100; [2002] FCA 433
BRIAN GERALD JAMES GOLDIE v THE COMMONWEALTH OF AUSTRALIA, THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS, JEFFREY PAUL TUNBRIDGE, ANTHONY BATTAGLINI, ROSS THOMAS GREGG, MICHAEL ALLAN CAIN, JAMES FREDERICK McCORMACK, THOMAS HOENIG AND DONNA RIORDAN
W 13 of 2001
GRAY, LEE AND STONE JJ
12 APRIL 2002
MELBOURNE (HEARD IN PERTH)
IN THE FEDERAL COURT OF AUSTRALIA |
|
WESTERN AUSTRALIA DISTRICT REGISTRY |
W 13 OF 2001 |
BETWEEN: |
BRIAN GERALD JAMES GOLDIE APPELLANT |
AND: |
THE COMMONWEALTH OF AUSTRALIA FIRST RESPONDENT THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS SECOND RESPONDENT JEFFREY PAUL TUNBRIDGE THIRD RESPONDENT ANTHONY BATTAGLINI FOURTH RESPONDENT ROSS THOMAS GREGG FIFTH RESPONDENT MICHAEL ALLAN CAIN SIXTH RESPONDENT JAMES FREDERICK McCORMACK SEVENTH RESPONDENT THOMAS HOENIG EIGHTH RESPONDENT DONNA RIORDAN NINTH RESPONDENT |
JUDGES: |
GRAY, LEE AND STONE JJ |
DATE: |
12 APRIL 2002 |
PLACE: |
MELBOURNE (HEARD IN PERTH) |
In the reasons for judgment delivered 12 April 2002, please make the following amendments:
1. Delete "Manger" from line 1 in par 13 and insert "Manager"; and
2. Insert the words "was invalid" after the words "bridging visa E" in line 16 of par 22.
Associate:
Dated: 20 January 2003
Goldie v Commonwealth of Australia [2002] FCA 433
MIGRATION - arrest and detention - whether officer knew or reasonably suspected that person an unlawful non-citizen - suspicion formed on viewing computer record of person's movements - record out of date - whether suspicion reasonable in light of knowledge of conflicting facts - whether duty to investigate
MIGRATION - jurisdiction of Court - whether jurisdiction to review decision to grant visa - application for and grant of bridging visa E as a means of obtaining release from detention - application outside time limited for review - whether jurisdiction to grant declaratory relief in respect of other proceedings in the Court terminated by self-executing orders - whether jurisdiction to grant declaratory relief as to entitlement to a visa
TORTS - false imprisonment - whether arrest and detention justified by statutory power - whether officer knew or reasonably suspected that person an unlawful non-citizen - suspicion formed on viewing computer record of person's movements - record out of date - whether suspicion reasonable in light of knowledge of conflicting facts - whether duty to investigate
TORTS - negligence - entry in computer of incorrect passport number - no evidence of circumstances in which error occurred - whether factual basis to assess foreseeability of harm arising from error at the time it was made
TORTS - misfeasance in public office - alleged inaccuracies and subjective comments in record of interview - alleged alteration of statement of witness in a manner prejudicial to applicant for visa - alleged apprehension and detention when officer knew or ought to have known that person had a valid bridging visa - advice that person in detention could only apply for a bridging visa E - alleged officer knew or ought to have known that person eligible for bridging visa A or B but not E - whether intention to harm - whether officers knowingly acted in excess of power or in reckless disregard of limits of power
ADMINISTRATIVE LAW - natural justice - decisions relating to visas - whether bias - whether ulterior purpose
WORDS AND PHRASES - "knows or reasonably suspects"
Migration Act 1958 (Cth) ss 189(1), 192, 196, 476, 477, 478(1)(b), 478(2), 485, 501
Domestic Violence (Family Protection) Act 1989 (Qld)
Bankruptcy Act 1924-1960 (Cth) s 95
Commonwealth Companies (Victoria) Code s 16A
Judiciary Act 1903 (Cth) s 485
Australian Constitution s 75
Migration Regulations 1994 (Cth) Sch 2 cl 020.511(b)
International Covenant on Civil and Political Rights Article 9
Minister for Immigration & Multicultural Affairs v A [1999] FCA 1679 (1999) 91 FCR 435 referred to
Yilmaz v Minister for Immigration & Multicultural Affairs [2000] FCA 906 (2000) 100 FCR 495 referred to
Sevim v Minister for Immigration & Multicultural Affairs [2001] FCA 1597 followed
Goldie v Commonwealth of Australia [2000] FCA 1873 referred to
Goldie v Minister for Immigration & Multicultural Affairs [1999] FCA 349 referred to
Goldie v Minister for Immigration & Multicultural Affairs [1999] FCA 1277 referred to
Goldie v Minister for Immigration and Multicultural Affairs [2001] FCA 1318 referred to
Kioa v West [1985] HCA 81; (1985) 159 CLR 550 referred to
Queensland Bacon Pty Ltd v Rees [1966] HCA 21; (1966) 115 CLR 266 referred to
Commissioner for Corporate Affairs v Guardian Investments Pty Ltd [1984] VR 1019 referred to
R v Hickman; Ex parte Fox and Clinton [1945] HCA 53; (1945) 70 CLR 598 referred to
Oguzhan v Minister for Immigration & Multicultural Affairs [2000] FCA 781 followed
Hocine v Minister for Immigration & Multicultural Affairs [2000] FCA 778 (2000) 199 FCR 269 followed
Rahman v Minister for Immigration & Multicultural Affairs [2002] FCA 83 followed
Donoghue v Stevenson [1931] UKHL 3; [1932] AC 562 referred to
Perre v Apand Pty Ltd [1999] HCA 36; (1999) 198 CLR 180 followed
Northern Territory v Mengel [1994] HCA 37; (1995) 185 CLR 307 followed
Sanders v Snell [1998] HCA 64; (1998) 196 CLR 329 followed
BRIAN GERALD JAMES GOLDIE v THE COMMONWEALTH OF AUSTRALIA, THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS, JEFFREY PAUL TUNBRIDGE, ANTHONY BATTAGLINI, ROSS THOMAS GREGG, MICHAEL ALLAN CAIN, JAMES FREDERICK McCORMACK, THOMAS HOENIG AND DONNA RIORDAN
W 13 of 2001
GRAY, LEE AND STONE JJ
12 APRIL 2002
MELBOURNE (HEARD IN PERTH)
IN THE FEDERAL COURT OF AUSTRALIA |
|
WESTERN AUSTRALIA DISTRICT REGISTRY |
|
1. The appeal be allowed in part.
2. So much of the judgment given by French J on 22 December 2000 as dismissed the appellant's claim for damages for unlawful arrest, false imprisonment and unlawful detention and as ordered the appellant to pay the respondent's costs of the proceeding be set aside.
3. The matter be remitted to French J for assessment of damages for the wrongful arrest of the appellant on 24 February 1998 and the consequent unlawful detention of the appellant from 24 February 1998 until his release from detention on 27 February 1998 and for reconsideration of the question of the costs of the proceeding at first instance.
4. Otherwise, the appeal be dismissed.
5. The respondent pay the appellant's costs of the appeal.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA |
|
WESTERN AUSTRALIA DISTRICT REGISTRY |
|
JUDGES: |
GRAY, LEE AND STONE JJ |
DATE: |
12 APRIL 2002 |
PLACE: |
MELBOURNE (HEARD IN PERTH) |
GRAY and LEE JJ:
1 We have read the reasons for judgment of Stone J in this appeal in draft form. Her Honour has set out the facts and the history of the proceeding in some detail. Save that it is necessary for us to refer to the facts in relation to the grounds of appeal with which we deal in these reasons for judgment, it is unnecessary for us to set them out again.
2 We agree with Stone J, for the reasons set out in her reasons for judgment, that, so far as it is based on grounds (d), (e), (f), (g), (h), (i) and (j), the appeal should be dismissed. We also agree with her Honour that, so far as it is based on ground (c), the appeal should be dismissed. We agree with her Honour's reasons in relation to that ground, but desire to state briefly some additional reasons of our own. Unlike Stone J, we are of the view that, so far as it is based on ground (a), the appeal should be allowed. Because we are of this view, it is unnecessary for us to consider ground (b). The view we take is that the appellant's detention was unlawful from the beginning, so it is unnecessary to decide whether it became unlawful at a later time.
The arrest of the appellant
3 Both the learned trial judge and Stone J have taken the view that the sixth respondent, Mr Cain, acted within power under the Migration Act 1958 (Cth) ("the Migration Act") in detaining the appellant on the afternoon of 24 February 1998, because Mr Cain reasonably suspected that the appellant was an unlawful non-citizen at that time. The relevant provisions of the Migration Act are s 189(1) and s 196. The former provided at the relevant time:
"If an officer knows or reasonably suspects that a person in the migration zone is an unlawful non-citizen, the officer must detain the person."
Section 196(1) provides:
"An unlawful non-citizen detained under s 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."
4 The definitions of the words "suspect" and "suspicion" in the Macquarie Dictionary make it plain that a suspicion may be formed "with insufficient proof or with no proof", or "on little or no evidence", or "on slight evidence or without evidence". By itself, the word "suspects" would be capable of being construed to include the formation of an imagined belief, having no basis at all in fact, or even conjecture. Plainly, to empower an arrest on the basis of an irrational suspicion would offend the principle of the importance of individual liberty underlying the common law. It would also allow the possibility of arbitrary arrest, with the consequence that Australia would be in breach of its international obligations pursuant to Article 9 of the International Covenant on Civil and Political Rights. To avoid these consequences, the word "reasonably" has been placed before the word "suspects" in s 189(1). The adverb makes it clear that, in order to justify arrest and detention, the suspicion that a person is an unlawful non-citizen must be justifiable upon objective examination of relevant material. Given that deprivation of liberty is at stake such material will include that which is discoverable by efforts of search and inquiry that are reasonable in the circumstances.
5 The phrase "reasonably suspects" is used as an alternative to "knows". Before an officer could know that a person is an unlawful non-citizen, the officer would have to have reached a level of satisfaction of that fact approaching certainty. If, as in the present case, the person concerned were not an unlawful non-citizen, because he or she was the holder of a visa entitling him or her to be in Australia, it would be impossible for the officer to know the contrary. The context of the phrase "reasonably suspects" suggests that something substantially less than certainty is required. Reasonable suspicion, therefore, lies somewhere on a spectrum between certainty and irrationality. The need to ensure that arrest is not arbitrary suggests that the requirement for a reasonable suspicion should be placed on that spectrum not too close to irrationality.
6 It is trite to say that what is reasonable in a particular case depends upon the circumstances of that case. It is worth remembering, however, that all of the circumstances must be considered. If, as in the present case, an officer is aware of conflicting facts, the reasonableness of any suspicion formed by that officer must be judged in the light of the facts available to him or her at the particular time. It may be that the existence of a particular fact would ground a reasonable suspicion in the mind of the officer if it were the only fact known to him or her. If, at the time of forming the suspicion, the officer is aware of conflicting facts, it may not be reasonable simply to discard those facts and to form a suspicion on the basis of the single fact capable of supporting such a suspicion. That is, the officer is not empowered to act on a suspicion reasonably formed that a person may be an unlawful non-citizen. The officer is to detain a person whom the officer reasonably suspects is an unlawful non-citizen. That, of course, is consonant with the serious act the officer is empowered to carry out. Section 196 operates upon a person detained under s 189 who is an unlawful non-citizen, not upon a person reasonably suspected of being an unlawful non-citizen. The scheme contemplated under the Migration Act is indefinite detention pending removal or deportation under administrative fiat. It is not detention for the purpose of curial review or determination of status. These provisions confirm that the appropriate construction of s 189 is that an officer in forming a reasonable suspicion is obliged to make due inquiry to obtain material likely to be relevant to the formation of that suspicion.
7 One further consideration should be mentioned. A suspicion that is not grounded in fact to the point of becoming reasonable does not become reasonable because of a perceived need to act quickly. In the present case, the fact that Mr Cain knew that the appellant was about to be dismissed from his employment by Fluor Daniel Pty Ltd ("Fluor Daniel"), and that he would be at the premises of that company at a particular time, did not bear upon the reasonableness of the suspicion. It created precisely the situation in which the need for a suspicion to be grounded in fact to the point of being reasonable became even more acute than normal, so that precipitate action, based on a misapprehension, might be avoided. The fact that the appellant was employed at a significant level with a national employer suggested that the appellant held a visa permitting him to obtain such employment.
8 The learned trial judge accepted that, at the time of the arrest of the appellant, Mr Cain had a state of mind that amounted to a suspicion that the appellant was an unlawful non-citizen. No reason was advanced on appeal as to why this finding of fact should be overturned. The question therefore is whether, at that time, the suspicion Mr Cain held was a reasonable one. The learned trial judge, and Stone J, have taken the view that the computer record that Mr Cain viewed, and that showed no record of a current visa, was sufficient to ground a reasonable suspicion. This was the only fact that could have grounded such a suspicion. It is necessary to look at it in the light of the other facts known to Mr Cain at the time.
9 The computer record that Mr Cain viewed on 24 February 1998 showed that the last visa issued to the appellant had been issued on 24 November 1995 and had ceased to be in effect on 27 February 1996. Plainly, it was not an up-to-date record. Indeed, the data perused by Mr Cain before he took action was only a partial search of the relevant record, in that the search related to data obtained from immigration cards filled out by the appellant on movements to and from Australia. It did not purport to be a search of a record of visas granted after the appellant entered the country. Furthermore, it was not suggested that Mr Cain made any search of the appellant's file to ascertain whether visas had been given extended effect by operation of the provisions of the Migration Act or the Migration Regulations. Mr Cain had received from the fifth respondent, Mr Gregg, a copy of the file of the Department of Immigration and Multicultural Affairs ("the Department") relating to the appellant, a copy of the most recent decision of the Administrative Appeals Tribunal relating to the appellant and a memo suggesting that Mr Cain might consider cancellation of a current visa held by the appellant. Mr Gregg was an officer in the Legal Services and Litigation Branch of the Department in Canberra. As an officer, he was under precisely the same duty to detain a person whom he knew or reasonably suspected to be an unlawful non-citizen as was Mr Cain. Yet he was not instructing Mr Cain to act on such a reasonable suspicion. He was suggesting that Mr Cain might like to consider cancellation of a current visa.
10 The decision of the Administrative Appeals Tribunal had been given on 18 February 1998, six days earlier. It was a decision on the application of the character test, pursuant to s 501 of the Migration Act. It involved the refusal of an application for a permanent resident visa, consequent upon the application of that test.
11 When Mr Cain gave evidence before the learned trial judge, the appellant, who appeared in person, asked him in cross-examination about his understanding of the currency of a bridging visa pending appeal from the Administrative Appeals Tribunal. It was put to him that, following the refusal of a visa under s 501, the applicant was automatically granted a bridging visa pending departure from Australia or an appeal. His response was that if someone was cancelling a visa under s 501, they may also have cancelled the bridging visa under the same section. According to him, his state of mind was:
"As far as I could ascertain, your visa had ceased and my belief was that there had been an error by another office in not either [sic] recording the things correctly before granting you a visa and that you held no visa."
At the time, Mr Cain had in his possession the very decision of the Administrative Appeals Tribunal, which he could have checked to see if it involved a cancellation of the appellant's bridging visa B. He also had in his possession the Department's file relating to the appellant. He had been instructed to consider cancellation of a visa, obviously on the basis that a visa existed that could be cancelled.
12 On 24 February, Mr Gregg telephoned Mr Cain and told him that he had been informed by the head office of Fluor Daniel in Melbourne that Fluor Daniel intended to dismiss the appellant from its employment. The appellant was employed at the Perth office at 1 Mill Street, Perth.
13 Mr Gregg told Mr Cain that the Finance Manger of Fluor Daniel in Melbourne, Mr Kinsella, was keen to understand what the Department intended to do with the appellant. Mr Cain was asked to call Mr Kinsella. Neither in the record he made of his conversation with Mr Gregg, nor in his evidence, did Mr Cain say that he discussed with Mr Gregg the standing of the appellant's visa.
14 As the learned trial judge found, on the basis of Mr Cain's own evidence, Mr Cain embarked on the process of cancelling the appellant's visa on 24 February 1998. Among the documents tendered at the trial is a decision record created by Mr Cain. At the outset, the decision record was typed on the assumption that Mr Cain was setting out to cancel a visa. It contains two passages quoted from the reasons for decision of the Administrative Appeals Tribunal that Mr Gregg had sent to Mr Cain. This makes it clear that Mr Cain had actually read the decision, and was in a position to know whether the Administrative Appeals Tribunal had cancelled any bridging visa. After recounting a telephone conversation Mr Cain had with Mr Kinsella, and with Mr Hohnen of Fluor Daniel's Perth office, the decision record breaks off and resumes with the words:
"As can be seen from above, I was in the process of cancelling the Bridging Visa held by Mr Goldie. However, upon searching the system a number of times I could not locate any current valid visa. To my satisfaction Mr Goldie did not hold a valid visa and was an UNC.He was detained at his workplace as an UNC and transferred to the IDC."
15 Mr Cain's handwritten file note with respect to that conversation with Mr Kinsella indicates that the note was made at 2.45 pm on 24 February. It indicates that Mr Cain informed Mr Kinsella of the Department's "normal policy", but "we had reason to believe [the appellant] may attempt to flee - will cancel visa and take into detention". Later in the note of the conversation Mr Cain recorded that the Department would visit the appellant and "assess whether his visa will be cancelled." This note, together with the decision record itself, suggests that at 2.45 pm on 24 February, Mr Cain was still acting on the assumption that the appellant had a visa. It also suggests that Mr Cain would interview the appellant before taking any action. Mr Cain recorded that he would await a "return call" from Mr Kinsella. Mr Cain's record of the "return call" from Mr Kinsella states that Mr Kinsella told Mr Cain that he had been instructed by the General Manager of Fluor Daniel that the appellant was to be dismissed as soon as possible. Mr Kinsella informed Mr Cain that the General Manager wanted the Department to be present when the appellant was dismissed and "to take action". Mr Kinsella said that, due to a "violent history", the appellant would be escorted from Fluor Daniel's offices to the ground floor by Chubb Security. Mr Cain was given a telephone number on which to contact the Perth manager for Fluor Daniel, Mr Hohnen, and instructions on how to get to the Perth office. In a subsequent conversation with Mr Hohnen of Fluor Daniel, Mr Cain learned that the appellant was about to be dismissed from his employment. Due to his violent history, the appellant would be escorted to the ground floor of the company's premises at 1 Mill Street, Perth, by Chubb Security. As the learned trial judge found, Mr Cain and another officer of the Department arrived at 1 Mill Street between 3.30 and 3.45 pm on that afternoon. They joined two officers from Australian Correctional Management (ACM), operator of the Immigration Detention Centre at Perth Airport, Belmont, whom Mr Cain had arranged to be present to take the appellant into detention.
16 Thus, within a period between forty-five minutes and an hour, Mr Cain did a number of things. He had a second conversation with Mr Kinsella and then had a conversation with Mr Hohnen. He typed the eight-line paragraph of his decision record that recounts one of his two conversations with Mr Kinsella and part of the conversation with Mr Hohnen. (The paragraph ends in mid-sentence about the appellant's history of violence.) He searched the Department's computer system to determine what visa the appellant held. His decision record says he searched "a number of times", but the material before the Court shows only computer searches of movement records were made on 24 February. He arranged for two ACM officers to be present at Fluor Daniel's office to take the appellant into detention. Mr Cain and another officer then left the Department's office in Northbridge and travelled to 1 Mill Street in the city centre. The timetable does not suggest that Mr Cain's consideration of all the facts before him was very thorough. It also suggests that, before any computer search was made, arrangements had been made with Fluor Daniel to take the appellant from the security officers escorting the appellant from Fluor Daniel's premises.
17 There was an absence of sufficient search or inquiry to make the formation of the suspicion justifiable on objective examination. Mr Cain was an experienced officer of the Department, who should have been aware of the provisions of the Migration Regulations that extended the operation of the visa granted to the appellant in November 1995, pending determination of the appellant's application for a permanent residence visa. That awareness would have provided a clear warning to Mr Cain that he would have to make more than a cursory enquiry before he could form a reasonable suspicion that the appellant did not hold a current visa.
18 It might be thought that, if the search made by Mr Cain caused him to doubt that the appellant held a visa, he should at least have asked the appellant to explain what his status was under the Migration Act. Having been instructed to consider cancelling the appellant's visa, Mr Cain, pursuant to s 192 of the Migration Act, could have detained the appellant for a limited time to question the appellant, subject to the pre-condition set out in subs 192(2) being satisfied. As noted above, Mr Cain told Mr Kinsella that he intended to cancel the appellant's visa and take the appellant into detention, but whether he could have done so under s 501 of the Migration Act without according the appellant natural justice would have required Mr Cain's close attention.
19 Having regard to all the circumstances, we are of the view that Mr Cain's suspicion that the appellant was an unlawful non-citizen was not reasonable. It is unnecessary to speculate but perhaps, if the only facts known to Mr Cain at the time had been those contained in the computer record, it may have been that his suspicion would have been reasonable. However, Mr Cain had other facts before him. He chose to prefer to base his state of mind on the computer record, the information in which was incomplete and older than the other materials available to him. He chose to disregard the other facts, and rely on the information obtained from a partial search of the record. In choosing to form a suspicion on the basis of a computer record two years old, without making inquiries or checking more recent records, Mr Cain did not act reasonably. He assumed that someone else had made a mistake. This assumption necessitated the formation of a belief that the Administrative Appeals Tribunal, Mr Gregg, and possibly other officers of the department were all mistaken. In the circumstances, it was not a reasonable assumption.
20 Mr Cain's action in arresting the appellant was precipitate and not justified by s 189(1) of the Migration Act. It was not based on knowledge or reasonable suspicion on the part of Mr Cain. It was not suggested that any other ground justified the arrest and detention of the appellant. That arrest and detention was therefore unlawful and gives rise to a right to damages on the part of the appellant. In our view, the appeal must therefore be allowed in part and the matter remitted to the learned trial judge for the assessment of damages. In view of the fact that the appellant should have succeeded at first instance in respect of part of his claim, the appeal should also be allowed so far as it concerns the order that the appellant pay the respondent's costs of the proceeding at first instance. Rather than attempting to exercise the discretion with respect to costs ourselves, we are of the view that the question of the costs of the proceeding below should also be remitted to the learned trial judge, who will be in a better position to determine the whole issue of costs in that proceeding after undertaking the assessment of damages. Although the appellant succeeded on one issue, it was the substantive issue of the appeal and the appellant, although not represented by counsel, should have the costs of the appeal to allow him to recover out of pocket expenses incurred in preparing the appeal.
The validity of the bridging visa E
21 The appellant contended that the bridging visa E granted to him on 27 February 1998 (the means by which he secured his release from detention on that day) was invalid. His purpose was to enable him to avoid the accusation that he had brought himself in breach of a condition attached to that visa that he not work. His previous bridging visa B had contained no such condition, and he had been working until immediately prior to his detention on 24 February 1998. His purpose was also to enable him to contend that the restriction on his right to work was relevant to the measure of damages that would flow from his unlawful detention. His need to contend that the bridging visa E was invalid arose because of the privative clause in s 485 of the Migration Act, which had the effect of depriving the Court of jurisdiction to review any decision other than one made judicially reviewable by Div 2 of Pt 8 of the Migration Act. The decision to grant the bridging visa E was not so reviewable for a number of reasons, not the least of which is that it was a decision to grant, rather than a decision to refuse to grant, a visa.
22 The basis of the appellant's contention was that his bridging visa E was a nullity because (as was conceded) he already held a bridging visa B and a person who held a bridging visa B was not eligible to apply for, or to be granted, a bridging visa E. The question whether an application is a nullity has been productive of judgments of previous Full Courts. See Minister for Immigration & Multicultural Affairs v A [1999] FCA 1679 (1999) 91 FCR 435 and Yilmaz v Minister for Immigration & Multicultural Affairs [2000] FCA 906 (2000) 100 FCR 495. Conflicting views have been expressed in both cases. Gray J endeavoured to express his own view of the outcome in Sevim v Minister for Immigration & Multicultural Affairs [2001] FCA 1597 at [48] - [56]. At [56], he expressed the view that, even if the Minister had considered an application which was not a valid application, contrary to s 47 of the Migration Act, the resulting grant of a visa was validated by s 69. We adhere to that view. It follows that, even if the application had not been a valid application, the resulting grant of a visa would not be a nullity. In any event, nothing in s 46 of the Migration Act, which provides for what is a valid application, suggests that ineligibility to be granted a visa for which an application is made is a ground for regarding the application as other than a valid application. The appellant's argument that the decision to grant him a bridging visa E must fail. For these reasons, as well as for those given by Stone J, the appeal so far as it is based on ground (c) must be dismissed.
23 It does not necessarily follow that the grant of a valid bridging visa E broke the chain of causation between the unlawful detention of the appellant and his suffering of loss by reason of being unable to work lawfully. This question was not argued. We express no view on it. It may be agitated before the learned trial judge when the assessment of damages is determined, but only if the evidence establishes that the appellant did not work because of the condition in the bridging visa E.
I certify that the preceding twenty-three (23) numbered paragraphs are a true copy of the Reasons for Judgment herein of their Honours Justices Gray and Lee. |
Associate:
Dated: 12 April 2002
IN THE FEDERAL COURT OF AUSTRALIA |
|
WESTERN AUSTRALIA DISTRICT REGISTRY |
W 13 OF 2001 |
BETWEEN: |
BRIAN GERALD JAMES GOLDIE APPELLANT |
AND: |
THE COMMONWEALTH OF AUSTRALIA FIRST RESPONDENT |
|
|
THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS SECOND RESPONDENT |
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|
JEFFREY PAUL TUNBRIDGE THIRD RESPONDENT |
|
|
ANTHONY BATTAGLINI FOURTH RESPONDENT |
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ROSS THOMAS GREGG FIFTH RESPONDENT |
|
|
MICHAEL ALLAN CAIN SIXTH RESPONDENT |
|
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JAMIE FREDERICK McCORMACK SEVENTH RESPONDENT |
|
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THOMAS HOENIG EIGHTH RESPONDENT |
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DONNA RIORDAN NINTH RESPONDENT |
JUDGE: |
GRAY, LEE AND STONE JJ |
DATE: |
12 APRIL 2002 |
PLACE: |
MELBOURNE (HEARD IN PERTH) |
STONE J:
24 This is an appeal from a decision of a judge of this Court dismissing an application made by Brian Gerald James Goldie, a citizen of the United Kingdom. Mr Goldie first came to Australia in 1992 on a visitor visa. The history of his attempts to obtain a visa under the Migration Act 1958 (Cth) ("Act") allowing him to remain in this country on a permanent basis is complex. The learned primary judge accurately and comprehensively summarised this history; Goldie v Commonwealth of Australia [2000] FCA 1873. For present purposes a brief summary of Mr Goldie's history, drawn largely from his Honour's reasons, will suffice.
25 In 1993, Mr Goldie applied for a permanent resident visa on the basis of his marriage to an Australian citizen. Beginning in July 1995, Mr Goldie also obtained a series of bridging visas B that permitted him to travel and return to Australia. The last in the series, granted on 24 November 1995, permitted Mr Goldie to leave Australia and to re-enter the country up until its expiry date of 27 February 1996. Mr Goldie last departed Australia on 27 November and returned on 29 December 1995. Under this visa Mr Goldie was also permitted to remain in the country until twenty-eight days after the latest of notification of the decision in relation to his application for a permanent resident visa, the decision of a review authority or withdrawal of the application. In an unreported decision handed down on 31 July 1998, in respect of proceedings QG 51 of 1998 before the Federal Court in Brisbane, Cooper J determined this period to have expired on 18 March 1998.
26 In October 1994, Mr Goldie's wife advised the Department of Immigration ("Department") that her marriage to Mr Goldie had broken down. At about the same time she obtained a protection order against him under the Domestic Violence (Family Protection) Act 1989 (Qld). In November 1994, Mr Goldie advised the Department that he and his wife had effected a reconciliation. It would appear that this was untrue and that at this time or shortly thereafter, Mr Goldie had started living with another woman. At about this time Mr Goldie also obtained a temporary protection order against his wife, claiming in a letter to the Department dated 15 December 1994 that this order had been made permanent on 13 December 1994. He drew the Department's attention to provisions of the Migration Regulations 1993 (Cth) which made it possible for an applicant in whose favour such an order had been made, to meet the relevant visa requirements notwithstanding that the marital relationship had ceased. In relation to this issue the learned primary judge made the following comment:
"This criterion and Goldie's awareness of it together with the timing of his application for a protection order raise the possibility and, having regard to the general impression I have formed of him, the probability that the application was a tactic to offset the legal disadvantage he found himself at by reason of the termination of his relationship with [his wife]."
27 In March 1995, the Australian Federal Police had advised the Department that a warrant for Mr Goldie's arrest had been issued in Edinburgh in respect of certain fraud offences involving Mr Goldie and two other persons. In March 1996, the Department was advised that the Scottish authorities had decided that they would not commence extradition proceedings against Mr Goldie but that the warrants would remain in force. It appears that information concerning the allegations of fraud was first conveyed to Mr Goldie in February 1997.
28 These allegations and Mr Goldie's unsatisfactory responses to the questions put to him about them in an interview on 26 February 1997, were partly instrumental in Mr Tunbridge, a delegate of the Minister for Immigration and Multicultural Affairs ("Minister") and the third respondent in this proceeding, rejecting Mr Goldie's application for a permanent resident visa. Mr Tunbridge's decision was conveyed to Mr Goldie in a letter dated 29 May 1997 from Mr Battaglini, the fourth respondent in this proceeding, of the Department's Cairns office. The letter advised Mr Goldie that his bridging visa B would remain in effect until 3 July 1997 but that if he should lodge a valid application for review of the decision, the visa would be extended while the review application was under consideration.
29 Mr Goldie's application for a review of Mr Tunbridge's decision was received by the Administrative Appeals Tribunal ("AAT") on 3 July 1997. The AAT affirmed the decision on 18 February 1998, concluding that Mr Goldie was not of good character and referring to the "lack of honesty and integrity which he has displayed in his dealings with the Department and his lack of integrity (in the sense of wholeness, soundness and uprightness) in not confronting the allegations of fraud in Scotland". On 25 February 1998 he appealed to the Federal Court. This appeal was dismissed by the Federal Court on 31 March 1999; Goldie v Minister for Immigration & Multicultural Affairs [1999] FCA 349. Mr Goldie's appeal from this decision was allowed by a Full Court of the Federal Court on 14 September 1999; Goldie v Minister for Immigration & Multicultural Affairs [1999] FCA 1277. The matter was returned to the AAT for further consideration and the application was again rejected.
30 Following the AAT's decision of 18 February 1998, officers of the Department were concerned that Mr Goldie might make attempts to avoid removal from Australia and for this reason were considering whether his bridging visa should be cancelled. The matter was referred to the Perth office of the Department where Mr Michael Cain, the sixth respondent in this proceeding, was in charge of the Compliance Section. Mr Cain was sent a copy of the AAT decision, the Department's file in relation to Mr Goldie and a memo from Mr Gregg, the fifth respondent in this proceeding. Mr Gregg was an officer in the Department's Litigation and Legal Services Branch in Canberra.
31 Mr Cain's evidence on affidavit was that he was unable to process the cancellation because he could not find any record of the bridging visa on the Department's computer system. He stated that the computer records showed that the last visa issued to Mr Goldie was granted on 24 November 1995 and had ceased on 27 February 1996. As a result, Mr Cain formed the (mistaken) view that Mr Goldie did not hold a visa and was therefore an unlawful non-citizen. He concluded that, pursuant to s 189(1) of the Act, he was required to detain Mr Goldie.
32 In the meantime Mr Goldie's employer, Fluor Daniel Pty Ltd, had been made aware of the United Kingdom fraud charges. On 24 February 1998 the company notified the Perth office of the Department of its intention to dismiss Mr Goldie that afternoon. When Mr Goldie was escorted down to the lobby of the Fluor Daniel premises that same day he was met by Mr Cain and another officer of the Department who advised him that his visa had expired. Mr Goldie protested that he had a current bridging visa and referred to a letter from the Cairns office of the Department confirming this. Despite his protests, he was then taken by two officers of Australian Correctional Management ("ACM"), Mr Reeves and Mr Guilfoyle, by van to the Immigration Detention Centre at Perth Airport.
33 A number of Mr Goldie's complaints are based on the manner of his detention and his treatment while in detention. Mr Goldie claimed that he was treated roughly, held by both arms and was half dragged to the waiting van. Mr Goldie also claimed that on arrival at the Detention Centre he was roughly strip-searched and was threatened with being taken to a maximum security gaol if he did not co-operate. Mr Goldie also claimed that at the Detention Centre, without his consent, he was twice completely stripped for a medical examination and the whole of his body including anal and genital regions was examined once by a male nurse and once by a female doctor in the presence of the male nurse.
34 The ACM officers who took Mr Goldie to the Detention Centre gave a different account, stating that the normal processes of induction, including a pat search, were carried out but that at no time was Mr Goldie asked to undress. Similarly the male nurse involved, relying partly on his memory of the events and partly on the standard procedures for medical examinations at the Centre, disputed Mr Goldie's account. The learned trial judge did not accept Mr Goldie's account of these incidents. In relation to the arrest and initial examination at the Centre, the learned trial judge said:
"I do not regard Goldie as a witness whose testimony in contentious areas can be relied upon unless inherently probable or corroborated by some independent evidence. In particular and having regard to the testimony of [the ACM officers], I am not satisfied that he was treated other than in the way described by the ACM officers in their evidence."
35 While in detention Mr Goldie applied for a bridging visa E. This was granted on 27 February 1998 subject to conditions, including that he pay $10,000 by way of security, that he not work, that he notify the Department of any change of address and that he pay the costs of his detention. The security amount was paid on the same day and Mr Goldie was immediately released.
36 On 1 June 1998, Mr Goldie commenced proceedings in the Federal Court against the Commonwealth of Australia as first respondent, the Minister as second respondent and against Mr Cain as third respondent. He sought damages for false imprisonment, assault, unlawful detention, misfeasance in public office and negligence, as well as certain declarations in relation to his visa status. By way of interlocutory relief, he sought orders directing the Minister to remove the work restriction on his current visa and to return the security that had been paid. The interlocutory relief was refused on 31 July 1998 and the action dismissed on 10 November 1998 by the operation of a springing order made by the Court on 30 October 1998.
37 In March 1998, Fluor Daniel Pty Ltd issued proceedings in the Supreme Court of Western Australia alleging wrongful conversion of company cheques in amounts totalling $417,515.30. In the meantime Mr Goldie moved to Brisbane without notifying the Department. Subsequently his lawyer, Mr Bocabella, advised the Department that Mr Goldie would be remaining in Brisbane and would provide a new address. A notice of intention to cancel Mr Goldie's bridging E visa was sent to Mr Bocabella. In response Mr Bocabella wrote that he could not accept service of documents for Mr Goldie who was staying at an address in Hervey Bay in Queensland. The Department wrote to Mr Goldie at this address and advised him that he should urgently complete and return another bridging visa application that would have the effect of varying his visa conditions, thus permitting him to remain in Brisbane. He was asked to return this form by 16 April 1998 and advised,
"Your urgent attention to this matter is critical, as my agreement to withhold further action on cancelling your bridging visa is conditional on you completing the new form and advising [the Department] of your new address."
38 When Mr Goldie did not respond by the nominated date, the Perth office of the Department contacted Mr Bocabella who, after some discussion, faxed a completed application to the Perth office and requested that the application for the new bridging visa E be decided by the Department in Queensland. Accordingly, the file was transferred to the Brisbane regional office of the Department. It is not clear what happened to the application that Mr Bocabella faxed to the Perth office but it appears not to have been processed.
39 On 29 April 1998, Mr Thomas Hoenig, the eighth respondent in this proceeding and then officer in charge of compliance in the Queensland branch of the Department, contacted Mr Goldie and queried his actions in moving to Queensland without notifying the Department. Mr Hoenig asked Mr Goldie to come to the Brisbane office as soon as possible to lodge a fresh application so that the address and conditions could be varied. According to Mr Hoenig, Mr Goldie was not co-operative and pleaded that lack of funds prevented him from coming to Brisbane for some weeks. In any event Mr Goldie lodged a fresh application for a bridging visa E on 8 May 1998. That application was approved on 20 May 1998 but without lifting the restriction on working as Mr Goldie had requested. Mr Goldie was asked to sign and return an acknowledgment of the conditions of the visa within seven days but apparently did not do so. The learned trial judge held, contrary to Mr Goldie's submissions, that the failure to sign and return this acknowledgment did not affect the validity of the visa. A further bridging visa E was granted on 19 June 1998 and was subject to similar conditions as had previously applied.
40 In August 1998, the Hervey Bay police advised Mr Hoenig that Mr Goldie had ceased reporting and was no longer resident at the Hervey Bay address. The Department requested that the Western Australian Police put out an alert seeking Mr Goldie as a person who was in breach of the conditions of his visa. On 27 August 1998, a warrant for Mr Goldie's arrest in relation to the theft of money from Fluor Daniel Pty Ltd was issued in Perth. That company obtained a summary judgment against Mr Goldie in the amount of $417,515.30 on 30 September 1998. On 15 February 2000, Mr Goldie was arrested in New South Wales and was extradited to Western Australia in relation to the charges of theft from Fluor Daniel Pty Ltd. Mr Goldie was given bail in the Court of Petty Sessions at Perth on 16 March 2000. This bail was revoked on 14 April 2000.
41 A further application for a bridging visa E received by the Department on 24 March 2000 was refused on 28 March 2000 on the basis that that Mr Goldie did not pass the character test under s 501(6)(c)(ii) of the Act. The refusal was confirmed by the AAT on 12 June 2000. On 22 December 2000, a judge of this Court dismissed Mr Goldie's application for an order of review of the AAT decision and an appeal to the Full Court was dismissed on 19 September 2001; Goldie v Minister for Immigration and Multicultural Affairs [2001] FCA 1318.
These proceedings
42 Mr Goldie commenced these proceedings on 7 April 2000 claiming inter alia damages for misfeasance in public office, false imprisonment, negligence, breach of statutory duties and contravention of the Information and Privacy Principles in the Privacy Act 1988 (Cth). His statement of claim alleged various causes of action in connection with the events outlined briefly above and more fully set out in the reasons of the learned primary judge. It was conceded at the hearing before the primary judge that the effect of cl 020.511(b) of Schedule 2 of the Migration Regulations 1994 (Cth) was that, unless otherwise terminated, the bridging visa B referred to in the letter of 29 May 1997 (see [28] above) would remain in effect until 18 March 1998.
43 His Honour dismissed the application and ordered that Mr Goldie pay the respondents' costs of the application. Mr Goldie now appeals from that decision on a number of grounds that are set out below. Mr Goldie does not now seek any relief against the fourth respondent.
Grounds of appeal (a) and (b)
"(a) His Honour erred in law in holding that the detention of the applicant between 24th and 27th February 1998 was not unlawful; and(b) His Honour erred in law and in fact in holding that reasonable suspicion had not been displaced on or about 24th and 25th February 1998"
44 As indicated in [31] above, Mr Cain's belief that Mr Goldie did not hold a visa as at 24 February 1998 arose from an error in the Department's computer record. The computer error appears to have originated from the entry of an incorrect passport identification number in the Department's computer system. There was no evidence as to who was responsible for this error. It is not in dispute however, that Mr Cain was incorrect and that Mr Goldie held a valid bridging visa B at the time of his detention. The issue here, however, is that raised by s 189(1) of the Act which provides:
"If an officer knows or reasonably suspects that a person in the migration zone is an unlawful non-citizen, the officer must detain the person."
Section 189 is buttressed by s 196(1) which provides that,
"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."
45 Mr Goldie attempted to persuade the Court that whether Mr Cain had a reasonable suspicion that he was an unlawful non-citizen and whether his detention was lawful are two quite separate questions. In his submission, s 189 could only operate to give Mr Cain a defence to a claim of personal liability; it could not make his detention lawful. Mr Goldie relied on the comment of Deane J in Kioa v West [1985] HCA 81; (1985) 159 CLR 550 at 631 where his Honour stated that:
"An alien who is unlawfully within this country is not an outlaw. Neither public officer nor private person can physically detain or deal with his person ... without his consent except under and in accordance with the positive authority of the law."
46 Deane J's proposition is undoubtedly correct. Indeed it is the exception to which his Honour refers that applies here. The intent of the Act is perfectly clear in that it does not merely authorise an officer who has the relevant suspicion to detain the person, it requires that the officer detain the person. The fact that the Act mandates detention in certain circumstances is what makes the detention lawful in those circumstances. Therefore if, at the relevant time, Mr Cain reasonably suspected that Mr Goldie was an unlawful non-citizen he was obliged to detain him and consequently that detention would be lawful.
47 In determining if Mr Cain had a duty to detain Mr Goldie it must be remembered that the statute uses the term, "reasonably suspects" [emphasis added]. The phrase "reason to suspect" occurring in s 95 of the Bankruptcy Act 1924-1960 (Cth) was considered by Kitto J in Queensland Bacon Pty Ltd v Rees [1966] HCA 21; (1966) 115 CLR 266. The section provided that a payment was deemed not to be in good faith if the payee had reason to suspect that the debtor was insolvent. His Honour analysed this provision at 303 as follows:
"In the first place, the precise force of the word "suspect" needs to be noticed. A suspicion that something exists is more that a mere idle wondering whether it exists or not; it is a positive feeling of actual apprehension or mistrust amounting to "a slight opinion, but without sufficient evidence", as Chambers's Dictionary expresses it. Consequently, a reason to suspect that a fact exists is more than a reason to consider or look into the possibility of its existence. The notion which "reason to suspect" expresses ... is, I think, of something which in all the circumstances would create in the mind of a reasonable person in the position of the payee an actual apprehension or fear ... a mistrust of the payer's ability to pay his debt as they become due ...."
48 In Commissioner for Corporate Affairs v Guardian Investments Pty Ltd [1984] VR 1019 Ormiston J considered the same expression occurring in s 16A of the Commonwealth Companies (Victoria) Code. His Honour observed at 1025:
"The word `suspect' requires a degree of satisfaction, not necessarily amounting to belief, but at least extending beyond speculation as to whether an event has occurred or not."
Both Kitto J and Ormiston J were concerned to point out that having a reason to suspect involves something more than mere speculation. Their Honours' comments are consistent with the relevant officer not having entirely resolved the issue of whether or not a person has a visa. An officer may have a reason to suspect that the person does not have a visa in circumstances where it would be unreasonable to form a concluded opinion to this effect.
49 It might be suggested that the expression "reason to suspect" sets a lower standard than the expression "reasonably suspects". But, when the context of these provisions is considered, they appear to serve the same purpose, namely to remove the untrammelled subjectivity of mere speculation and ground the suspicion in objective facts. This does not however, detract from the basic meaning of the word "suspect" and require resolution of all discrepancies in the circumstances under consideration. The learned primary judge recognised this when, having distinguished between the "reasonableness of the detention" and the reasonableness of Mr Cain's suspicion, his Honour at [82] continued:
"This is not to suggest that the officer's suspicion can be based upon purely subjective considerations."
50 The unexplained discrepancies in Mr Goldie's visa history are clearly inconsistent with Mr Cain reasonably forming a concluded opinion that Mr Goldie did not have a visa. Such a conclusion could not be reasonable while the discrepancy between the computer record and the memo from Mr Gregg suggesting cancellation of Mr Goldie's visa (see [30] above) remained unexplained. It would seem however, that the Act, in imposing a duty to detain on reasonable suspicion, contemplates situations where there are issues to be resolved before a final view is formed as well as situations where the reasonable suspicion turns out to be incorrect. This interpretation is consistent with s 196(2) of the Act which, in providing that s 196(1) does not prevent the release of "a citizen or a lawful non-citizen", clearly contemplates that a citizen or lawful non-citizen might be detained under s 189. It is also consistent with the absence of discretion in s 189(1). While I agree with Gray and Lee JJ that a perceived need to act quickly does not make an unreasonable suspicion reasonable, an officer who "reasonably suspects" that a person is an unlawful non-citizen is not entitled to delay detaining that person until doubts are resolved.
51 In my view however, with the greatest respect to the contrary view expressed by Gray and Lee JJ, there is no substantive difference between an officer reasonably suspecting that a person may be an unlawful non-citizen and reasonably suspecting that the person is an unlawful non-citizen. The word, "reasonable" expresses an indeterminate standard. In deciding if an officer's suspicion is reasonable all relevant doubts and circumstances including contradictory or insufficient evidence should be taken into account. The statement that a person "may be" an unlawful non-citizen appears to admit of another layer of doubt when all doubts should already have been taken into account. As such the enquiry can have nothing to add.
52 The reasonableness of a suspicion must be assessed in the light of the information that an officer has at the relevant time. Leaving the present facts aside, it is not difficult to imagine cases where despite the Department computer records showing that the non-citizen does not have a visa, it would not be reasonable to suspect that the person is an unlawful non-citizen. It might be, for example, that the relevant officer is personally acquainted with the particular case or has other knowledge that makes such a suspicion unreasonable.
53 No such circumstances applied in this case. Mr Goldie's case had been handled in Queensland and only came to Mr Cain on 24 February 1998, the day on which Mr Goldie was subsequently detained. Mr Goldie laid some stress on the fact that as an experienced officer Mr Cain could reasonably be expected to know that the bridging visa of an applicant for a visa is, by operation of law, continued during the appeal process. At the hearing before the primary judge, Mr Cain agreed, in response to Mr Goldie's questions on cross-examination, that he would expect someone still at liberty to hold a bridging visa. He also stated however, that such a visa could have been cancelled where an application was refused for reasons of character. While it is undoubtedly true that, as eventually occurred, further enquiries by Mr Cain would have resolved his doubts this is not inconsistent with Mr Cain's belief at that time being reasonable. It is not clear to me that the doubts could have been resolved merely by reading the Departmental file or the AAT decision that had been given on 18 February 1998. The fact that it took some days to sort out the true situation indicates that the discrepancies in Mr Goldie's visa history were not easily resolved.
54 I am of the opinion that in these circumstances it was reasonable for Mr Cain to suspect that Mr Goldie was an unlawful non-citizen even though there remained some unanswered questions. That being so Mr Cain was obliged under s 189 of the Act to detain Mr Goldie before resolving these issues. It follows that Mr Goldie's detention on 24 February 1998 was lawful.
55 That of course raises the question whether Mr Goldie's detention was lawful during the whole of the time he was detained. The evidence before the Court showed that immediately after Mr Goldie had been arrested and taken to the ACM van (see [32] above), Mr Cain returned to the Department. There he consulted with the Department's Cairns office concerning the letter of 29 May 1997 to which Mr Goldie had referred on his arrest. On the following morning, 25 February 1998, he made further computer searches, made enquiries of the Department's Visa Cancellation Section, and checked with Ms Eva Starczewska, who had previously been a visa cancellation contact officer in Canberra. Mr Cain gave evidence that Ms Starczewska told him that Mr Goldie had had a series of bridging visas all or which had ceased and that Mr Goldie was presently an unlawful non-citizen. All of these enquiries strengthened his view that Mr Goldie did not have a current Australian visa and he concluded that the letter of 29 May 1997, which informed Mr Goldie that he had a bridging visa, must be incorrect.
56 Later that day Mr Cain visited Mr Goldie in detention. He told Mr Goldie that the letter of 29 May 1997 was incorrect and advised him to apply for a bridging visa E. Mr Goldie was granted a bridging visa E and was released on 27 February 1998. It is not clear when the Department realised that Mr Goldie did in fact have a bridging visa at the time he was detained. I am satisfied however that on the basis of his post-detention enquiries, Mr Cain had a reasonable suspicion during the whole of the detention period (that is until 27 February 1998) that Mr Goldie was an unlawful non-citizen. It follows that the claim of unlawful imprisonment cannot be sustained.
Ground of appeal (c)
"His Honour erred in law in holding that the privative effect of s 485(1) of the Migration Act 1958 operates to preclude jurisdiction of the Federal Court of Australia to prevent review of a decision that is beyond power of a delegate of the respondent Minister"
57 At the time of the primary judge's decision the Court's jurisdiction relating to visas was conferred by s 475(1)(c). This section provided that decisions relating to visas, made under the Act or the regulations, are judicially reviewable decisions. The Act confined the Court's jurisdiction in relation to judicially reviewable decisions to that given under the Act and s 44 of the Judiciary Act 1903 (Cth); s 485. This jurisdiction was exclusive of the jurisdiction of all other courts other than that of the High Court under s 75 of the Constitution. Section 478(1)(b) of the Act provided that an application under s 476 or s 477 must be lodged with a Registry of the Federal Court within 28 days of the applicant being notified of the decision. This strict deadline was confirmed by s 478(2) which provided:
"The Federal Court must not make an order allowing, or which has the effect of allowing, an applicant to lodge an application outside the period specified in paragraph (1)(b)."
58 As this proceeding was commenced on 7 April 2000, his Honour correctly held that the effect of s 478 was to deny the Court jurisdiction to make the declarations sought in relation to bridging visas which had been granted to Mr Goldie and in relation to other bridging visas which had not been granted to him. Nor does the Court have the jurisdiction to make certain consequential orders that Mr Goldie also sought, namely that the Minister should determine his migration status between certain dates as if he held a bridging visa A or a bridging visa B. The relevant visas are the bridging visas E granted to Mr Goldie on 27 February 1998, 20 May 1998 and 19 June 1998 and the claimed entitlement to a bridging visa A and a bridging visa B at the dates on which he applied for bridging visas E, namely 13 May 1998 and 2 June 1998. Similarly the Court has no jurisdiction in relation to the bridging visa B granted to Mr Goldie prior to 18 March 1998.
59 Mr Goldie submitted that s 485 deprives the Court of jurisdiction only in the case of a valid decision and not in relation to a decision that is a nullity. For instance, it was submitted that the Court had jurisdiction in respect of the bridging visa E granted on 27 February 1998 because, at that time it was issued, Mr Goldie was a holder of a valid bridging visa B and therefore did not fall within the class of persons to whom such a visa may be granted. Mr Goldie relied on R v Hickman; Ex parte Fox and Clinton [1945] HCA 53; (1945) 70 CLR 598 in support of his submission that a decision made in excess of jurisdiction is not affected by s 485 or by the time limit in s 478.
60 Mr Goldie's submission relies on authorities that are not relevant here. Section 478 merely imposes a time limit limiting the grant of the Court's jurisdiction in relation to applications under s 476 and s 477. The validity of s 478 was upheld at first instance in Oguzhan v Minister for Immigration & Multicultural Affairs [2000] FCA 781 and Hocine v Minister for Immigration & Multicultural Affairs [2000] FCA 778, (2000) 99 FCR 269. Most recently it was considered in Rahman v Minister for Immigration & Multicultural Affairs [2002] FCA 83 by the Full Federal Court which held at [17]:
"An element of the right created by s 476(1) to apply to the Court for review of a judicially reviewable decision is that the right be exercised by application made within the time specified in s 478(1)(b). That provision imposes a condition that is of the essence of the new right created by s 476, being the new right to seek review by the Federal Court of a judicially reviewable decision. It is a valid exercise of the legislative power to limit the jurisdiction of the Court to entertain only those applications filed within twenty-eight days of notification of a judicially reviewable decision."
61 His Honour was correct in rejecting this claim.
Ground of appeal (d)
"His Honour erred in law in holding that the Federal Court of Australia had no jurisdiction to grant declaratory relief in respect of decisions the subject of proceedings in the Federal Court of Australia at Brisbane which were stood down with liberty to apply"
62 Mr Goldie's submissions in relation to this ground of appeal, which relates to the proceedings briefly described in [36] above, appear to be based on a misconception. Those proceedings were terminated by the self-executing orders made by Cooper J and there was no appeal. There can be no question of the Court in this proceeding having jurisdiction merely because issues were raised in the earlier, quite separate proceeding.
Ground of appeal (e)
"His Honour erred in law in holding that the Federal Court of Australia had no jurisdiction to grant declaratory relief in respect of the applicant's entitlement to a Bridging Visa A or B between February 1998 and January 2000"
63 Mr Goldie submitted that at the time he was granted a bridging visa E on 27 February 1998, he was entitled to a bridging visa A or B. He made the same claim in relation to subsequent bridging visas E granted in the period from February to June 1998. In relation to these claims the learned trial judge stated at [68]:
"The declarations sought in respect of his entitlement to Bridging Visas A and B at these dates and his substantial compliance with the requirements for applying for such visas, is really an attempt at a collateral attack on the grant of the Bridging Visa E in each case. The Court, in my opinion, does not have jurisdiction to entertain those claims for relief. They would, in any event, be hopeless as Goldie on each occasion received what he applied for, namely a Bridging Visa E."
64 For the reasons set out in [58] to [60] above, his Honour's reasoning was correct. This ground of appeal is not made out.
Ground of appeal (f)
"His Honour erred in law in holding that to establish an action for tort in negligence requires the decision-maker to apprehend a foreseeable risk of harm"
65 Mr Goldie sought damages for negligence against the first, second, sixth and seventh respondents in relation to his arrest and detention as a suspected unlawful non-citizen. In considering the issue of negligence as against the first and second respondents, his Honour considered if negligence could be attributed to the Minister by reason of the computer error that led to the confusion about Mr Goldie's visa status. His Honour stated:
" All that is known is that at some point a passport identification number was wrongly entered upon Goldie's return to Australia thus creating the false impression in the computer records that he had not returned, on the basis of which his Bridging Visa B was recorded as having ceased in February 1996. The circumstances in which that error arose do not emerge from the evidence. Nothing is known of who was responsible for the error nor the systems in place for the entry of the relevant identification numbers. Nor is there a factual basis to assess foreseeability of harm arising from such error at the time it was made. In the circumstances no claim for negligence against the Minister or the Commonwealth was made out."
66 It is beyond contention that reasonable forseeability has been an essential element of the tort of negligence since the decision of the House of Lords in Donoghue v Stevenson [1931] UKHL 3; [1932] AC 562 and that this proposition is accepted by the High Court of Australia; Perre v Apand Pty Ltd [1999] HCA 36; (1999) 198 CLR 180. This ground of appeal must be rejected.
Grounds of appeal (g), (h) and (i)
"(g) His Honour erred in law and in fact in holding that there was no evidence from which to draw an inference to sustain a claim to establish misfeasance in public office; and(h) His Honour erred in law and in fact in holding that there was no evidence from which to draw an inference to sustain a claim of actual bias; and
(i) His Honour erred in law and in fact in holding that there was no evidence from which to draw an inference to sustain a claim of improper purpose"
67 Mr Goldie largely relied on the same facts in relation to these three grounds of appeal and therefore it is convenient to deal with them together. Before the primary judge, Mr Goldie claimed misfeasance in public office against the Commonwealth, the Minister and each of the officers named as respondents other than the fourth respondent against whom no relief was sought. At the hearing of this appeal, Mr Goldie withdrew this claim in relation to the seventh respondent, Mr McCormack. Mr Goldie also alleged bias against the third, fifth and ninth respondents. These claims relate to various decisions and actions taken by the third, fifth, sixth, eighth and ninth respondents in relation to Mr Goldie's visa status in Australia.
68 In relation to the third respondent, Mr Tunbridge, Mr Goldie's claim, as the primary judge expressed it,
"turns upon the conduct of his interview with Goldie on 26 February 1997, his filing of a typewritten transcript of his notes of that interview, knowing it not to be an accurate record and to contain subjective comments interpreting Goldie's answers and his rejection of the substantive visa application on 20 May 1997. As to the latter, it is said also that his reference to the refusal of the application as a result of failed extradition proceedings was written in the knowledge that extradition proceedings in Scotland had not been continued by the Procurator Fiscal as a result of insufficient evidence, and not for the stated "commercial reasons" set out in his record of decision. The claim against Tunbridge also turns upon his treatment of Spence's statement, his amendment of it and the filing by himself and Gregg of that document in the AAT."
69 In relation to Mr Gregg, the fifth respondent, Mr Goldie's main allegation was that Mr Gregg had altered ("massaged") the statement made by Ms Christina Spence, a former partner of Mr Goldie, in a manner prejudicial to Mr Goldie and tailored to fit the case against him. In a letter to Mr Tunbridge dated 14 July 1997 Ms Spence advised that her relationship with Mr Goldie had irretrievably broken down in May of that year. She stated that one of the reasons for the breakdown of the relationship had been Mr Goldie's admission of guilt in relation to the alleged fraud in Scotland (see [27] above). She claimed that she was in fear of violence from Mr Goldie but, as he was soon to leave Mackay, she now felt more secure. A copy of this letter was sent to Mr Gregg who had carriage of the matter after Mr Tunbridge rejected Mr Goldie's application for permanent residency in May 1997. Mr Gregg discussed this letter with Ms Spence by telephone. She agreed to appear at the AAT hearing as a witness. On 26 August 1997, Ms Spence faxed to Mr Gregg a statement that he used to prepare a witness statement that was, in due course, signed by Ms Spence. That statement contained allegations damaging to Mr Goldie, including that he had confessed to Ms Spence that he was guilty of fraud in Scotland. At the hearing before the AAT, Ms Spence sought to withdraw her statement saying that she was no longer satisfied as to its accuracy. She stated that she had signed the statement hurriedly, as she was about to leave Australia. Although she confirmed that the statement was an accurate record of what she had said, she expressed doubt about whether what she was told was accurate.
70 Mr Goldie's claims against the sixth, eighth and ninth respondents relate to Mr Goldie's detention, the subsequent issue of bridging visas subject to certain conditions and refusal of a bridging visa in March 2000. In connection with this appeal, Mr Goldie did not make any submissions either written or oral in relation to the conduct of the sixth respondent, Mr Cain. The primary judge, however, summarised the claims against Mr Cain as follows:
"The claim for misfeasance in a public office against Cain relates to his apprehension of Goldie and taking him into detention when it is said he knew or ought to have known that Goldie held a valid bridging visa until 18 March 1998, that he was not an unlawful non-citizen and could not be detained pursuant to s 189 of the [Act]. It also relates to Cain's advice to Goldie that he could apply only for a Bridging Visa E in February 1998. It was said he knew or ought to have known that Goldie satisfied the criteria for a Bridging Visa A or B and did not satisfy the criteria for a Bridging Visa E. The things Cain did were said to have been done with reckless disregard to the extent of his power and intending to cause harm to Goldie."
71 Mr Hoenig, the eighth respondent, undertook the carriage of the appellant's case in April 1998 and was responsible for the grant of a bridging visa E on 20 May 1998. The prohibition against working that was a condition of previous visas was continued. Mr Goldie alleged that despite Mr Hoenig being aware that he was entitled to a bridging visa A he continued to deny working rights to Mr Goldie and tried to prevent the success of Mr Goldie's appeal against the refusal of his permanent residency visa.
72 The tort of misfeasance in public office was considered by the High Court in Northern Territory v Mengel [1994] HCA 37; (1995) 185 CLR 307 ("Mengel"). The majority of the Court (Mason CJ, Dawson, Toohey, Gaudron and McHugh JJ) stated at 345 that the weight of authority in Australia and in the United Kingdom is to the effect that the tort of misfeasance in public office,
"is a deliberate tort in the sense that there is no liability unless either there is an intention to cause harm or the officer concerned knowingly acts in excess of his or her power."
The majority in Mengel accepted that the second of these alternatives required qualification but, for the purposes of that case, was content to proceed on the basis that the actions must also involve foreseeable risk of harm. Nevertheless, the majority continued at 347,
"If misfeasance in public office is viewed as a counterpart to the torts imposing liability on private individuals for the intentional infliction of harm, there is much to be said for the view that, just as with the tort of inducing a breach of contract, misfeasance in public office is not confined to actual knowledge but extends to the situation in which a public officer recklessly disregards the means of ascertaining the extent of his or her power."
73 In Sanders v Snell [1998] HCA 64; (1998) 196 CLR 329 at 346 a differently constituted majority (Gleeson CJ, Gaudron, Kirby and Hayne JJ) noted these views in Mengel. Their Honours also accepted that misfeasance in public office is an intentional tort but observed that the precise limits of the tort of are still undefined.
74 The learned primary judge considered the actions of the relevant respondents that Mr Goldie claimed amounted to misfeasance in public office. It is not necessary here to set out the details as they sufficiently set out at [72] to [76] of his Honour's judgment. His Honour concluded at [76] that all the claims based on misfeasance in public office failed stating that:
"It is sufficient to say that whatever errors may have been made in relation to the detention of Goldie in February 1998 in the belief that he did not hold a then current visa, the criteria for misfeasance in public office are simply not made out. There is no evidence, in my opinion, of intention to harm him on the part of any of the respondents or that the respondents knowingly acted in excess of their power."
On the evidence before the Court, his Honour's conclusion is plainly correct. Nor, I might add, is there any evidence that the relevant officers acted in reckless disregard of the limits of their powers under the Act.
75 The claims made against the ninth respondent, Ms Donna Riordan, an officer in the Perth branch of the Department, relate to her refusal on 28 March 2000 to issue a bridging visa E to Mr Goldie. As well as claiming misfeasance in public office, Mr Goldie alleged that before Ms Riordan made her decision on 28 March 2000 to refuse him a bridging visa E, she had made statements that indicated she was biased against him. He also claimed that she had made her decision without giving the appellant a right of response and for an improper purpose. There is no evidence to support either of those claims. In addition, as the learned trial judge pointed out, Mr Goldie sought review of Ms Riordan's decision in the AAT where he had the benefit of full merits review. His appeal to this Court from the AAT decision was dismissed at first instance and on appeal; Goldie v Minister for Immigration and Multicultural Affairs [2001] FCA 1318.
Ground of appeal (j)
"His Honour erred in law and in fact in holding that the applicant had obtained a protection order as a legal tactic"
76 His Honour's comments to which Mr Goldie objected are set out at [26] above. His Honour's comment was clearly based on the general impression he formed of the applicant. His Honour's conclusion was open to him and, with respect, it was reasonable in the circumstances. It does not demonstrate any error on the part of his Honour. In any event there is nothing to suggest that this conclusion had any bearing on his Honour's determination of any of the claims made by Mr Goldie.
Decision
77 For these reasons the appeal should be dismissed with costs.
I certify that the preceding fifty-four (54) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Stone. |
Associate:
Dated: 12 April 2002
Counsel for the Appellant: |
The appellant appeared in person |
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Counsel for the Respondent: |
Mr P R Macliver |
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Solicitor for the Respondent: |
Australian Government Solicitor |
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Date of Hearing: |
1 June 2001 |
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Date of Judgment: |
12 April 2002 |
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