Dale, Joshua --- "The Commonwealth's duty of care to asylum seekers in immigration detention" [2015] PrecedentAULA 39; (2015) 128 Precedent 42

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THE COMMONWEALTH’S DUTY OF CARE TO ASYLUM SEEKERS IN IMMIGRATION DETENTION

By Joshua Dale

The treatment of refugees in Australia is clearly not only a legal issue, but also a moral one, which has challenged the collective Australian psyche over the past decade. Whether it is the former Labor government’s 2011 ‘Malaysia Solution’ or the current Coalition government’s mantra of ‘Stop the boats’, how we treat refugees and asylum seekers has become a key focus of Australian politics, election promises and, ultimately, law. While the battle between law and morality is fought out in the political arena, individuals in immigration detention continue to suffer physical and psychological injuries, sometimes with devastating and long-lasting effects. Some of these cases potentially involve breaches of common law rights that, if pursued, could result in significant awards of damages.

DETENTION – IS IT LAWFUL?

Under s198A of the Migration Act 1958 (Cth) (Migration Act), if an individual enters Australia’s jurisdiction claiming asylum they may not be removed from Australia for the purposes of having their refugee status assessed unless the country to which they are being removed to meets the criteria set out in s198A(3). This section essentially creates the power to detain and/or assess asylum seekers in Australia’s various detention facilities or a place designated as an offshore processing country. Under s189 of the Migration Act, ‘if an officer knows or reasonably suspects that a person in the migration zone (other than an excised off-shore place) is an unlawful non-citizen, the officer must detain the person’ until such time as a visa is granted or they are removed from Australia and returned to their country of origin.^[1] However, ‘if an officer knows or reasonably suspects that a person in an excised off-shore place [such as Christmas Island] is an unlawful non-citizen, the officer may detain the person’.^[2] There is no provision governing the length of time that an asylum seeker may be detained. In fact, in Al Kateb v Godwin,^[3] the full Federal Court confirmed that indefinite mandatory detention of asylum seekers is within the scope of the Act.

On face value, it is clear that mandatory detention of asylum seekers is not enough to amount to unlawful detention. However, a number of administrative provisions must take effect before one can be detained. Sections 194 and 195 of the Migration Act provide for a reasonable period of time to be given to any asylum seeker to apply for an appropriate visa, such as a bridging visa or a protection visa.

In the case of Sales v Minister for Immigration and Multicultural Affairs,^[4] the plaintiff was found to have been falsely imprisoned, with the Federal Court finding that 14 days’ notice was not enough time to afford procedural fairness in the circumstances. However, the full bench of the Federal Court has since confined the application of ss194 and 195, suggesting that false imprisonment occurs only if detained during the reasonable notice period, and for its duration only.^[5]

As a consequence, in the case of Fernando v the Commonwealth,^[6] when it was remitted to the primary judge for reconsideration of damages, nominal damages were awarded in the sum of $1 on the basis that the plaintiff would have inevitably been lawfully detained. The plaintiff in that case was awarded $25,000 for exemplary damages, having been denied procedural fairness. In these circumstances, while there is some scope to bring a cause of action arising from unlawful detention, it is unlikely to yield any significant damages, except in exceptional circumstances.

However, most individuals who travel to Australia seeking asylum or protection are likely to be immediately detained and held in one of Australia’s detention facilities.

It is asylum seekers’ experiences while in these facilities that potentially gives rise to a breach of a non-delegable duty of care on the part of the Commonwealth.

DOES THE COMMONWEALTH HAVE A DUTY OF CARE?

While there is a plethora of case law that involves the Commonwealth of Australia and a duty of care generally, it is quite a unique duty which is established when the dictates of policy allow for the indefinite detention of any individual while their visa status is being processed.

The common law duty of care towards people held in a detention like environment is grounded largely in the case of Howard v Jervis [1958] HCA 19 – Mr Jervis was arrested and detained in a cell at a police station when there was a fire and he died in his cell. Despite Mr Jervis being detained lawfully and properly, the High Court established that by depriving an individual of his liberty, an assumption of control of that person is created, resulting in a duty to exercise reasonable care for the safety of that person, required by law.

This decision was ultimately upheld in the case of Price v State of New South Wales [2011] NSWCCA 341, where the plaintiff was also detained in a prison by the state, with the court clearly stating:

‘Critical to the special character for relevant purposes here is the control by the respondent of the appellant and its assumption of responsibility over the appellant......duty no doubt extends to the taking of reasonable care in the exercise of powers of control and direction that exist in order to avoid injury to an inmate.’^[7]

At the outset, these cases clearly establish a duty on the part of any detaining body or government to take reasonable care for the safety of the person detained, including the Commonwealth when it imprisons people in immigration detention. These cases also establish a duty on the detaining bodies to exercise powers of control and provide access to amenities, such as medical treatment, in a manner as to avoid injury. In Behrooz v Secretary, Department of Immigration and Multicultural and Indigenous Affairs & Ors, the High Court made clear that:

‘Harsh conditions of detention may violate the civil rights of an alien. An alien does not stand outside the protection of the civil and criminal law. If an officer in a detention centre assaults a detainee, the officer will be liable to prosecution, or damages. If those who manage the detention centre fail to comply with their duty of care, they may be liable in tort. But the assault, or the negligence, does not alter the nature of the detention. It remains detention for the statutory purpose identified.’^[8]

However, the Court also noted that while a detainee may face extreme difficulties during detention, that exposure alone does not give rise to a cause of action suggesting unlawful detention.^[9]

For cases involving negligence, or the failure to provide adequate medical care or treatment, it is therefore necessary to undertake a detailed analysis of what was required by each individual detainee and consider whether provision to prevent, control or treat any arising physical or psychological condition, whether it was pre-existing or arising directly out of detention, was adequate. In this regard, the Commonwealth has had to take reasonable steps to provide or procure the provision of relevant health services. In MZYYR v Secretary, Department of Immigration and Citizenship & Anor, the Federal Court of Australia identified that:

‘The Commonwealth is in a position of control. Detainees cannot reasonably be expected to safeguard themselves from danger, especially detainees with mental health needs which are known to the Commonwealth. The question which arises is whether there are other supervening reasons in policy to deny the existence of a duty of care.’^[10]

In that particular case, medical evidence existed that the applicant detained suffered from a neuro-developmental disorder with associated intellectual impairment. During the course of detention, specialist psychiatric services were not made available to deal with his intellectual disability. In those circumstances, the Commonwealth was ordered to take all reasonable steps to provide or procure the provision of appropriate mental health services.

Since then, it is arguably no longer necessary to consider whether or not specific orders should or could be sought by courts for the provision of medical treatment and/or services, as this case makes clear that the Commonwealth must take all reasonable steps to ensure that such treatment and/or services be made available.

In fact, the law has developed in such a way that there is now precedent establishing a non-delegable duty of care on the part of the Commonwealth. In AS v Minister for Immigration and Border Protection,^[11] it was confirmed that the Commonwealth accepted that it owes a non-delegable duty of care to provide reasonable healthcare to detainees, and conceded that the Minister also arguably owed a non-delegable duty of care in this regard.^[12]

Albeit an interlocutory matter, this case revealed a clear concession on the part of the Commonwealth that it cannot contract its responsibilities out to other organisations, and that ultimate responsibility remains with the Commonwealth regardless of which services are engaged by external providers.

If it is accepted that the Commonwealth has a non-delegable duty of care to those in detention, the next step is to compile a case that, on the balance of probabilities, is capable of satisfying a court that the evidence amounts to a breach of that duty of care. This has yet to occur in Australia.

ESTABLISHING A BREACH OF DUTY OF CARE ON THE PART OF THE COMMONWEALTH

While the Commonwealth has accepted that it may have a non-delegable duty of care to asylum seekers and/or refugees who make their way to Australia, establishing a breach of that duty is somewhat more complicated and will differ depending on the facts of each individual case.

At the outset, when taking initial instructions regarding any potential claim against the Commonwealth involving individuals held in detention centres, one must first examine the standards of care said to be provided by the Commonwealth.

Over the years, the Commonwealth has created a number of reports and standards that define and/or outline its relationship with contracted service providers. This includes extensive policy frameworks that effectively define the standard of care expected to be implemented by the Commonwealth in a detention centre environment.^[13]

What is clear is that the Commonwealth accepts an obligation to provide for the safety of all detainees from both physical and psychological harm and to provide healthcare; general services including meals, education, recreation and religious activities; and care arrangements for unaccompanied minors.^[14]

If it is found on the factual circumstances of an individual case that these services have not been provided to a detainee, then this, in and of itself, may create a cause of action capable of satisfying a court of a breach of a duty of care. The types of cases that may fall within this ambit include circumstances where a detainee is assaulted during the course of their detention and suffers injury (an intentional tort) or where an individual might have sustained a physical or psychological injury or have suffered a pre-existing physical or psychological injury and has not received adequate treatment within the detention centre environment (negligence).

From a practical perspective, any standards established for detention centres do not have the force of law. However, they remain a useful tool and are very powerful under cross-examination when seeking to prove a breach of duty of care. Furthermore, they reinforce the self-imposed responsibility on the part of the Commonwealth and work well to establish various duties to provide medical treatment and maintain the safety of any detainee while in the detention centre environment.

Evidence may also arise that points to a potential breach of the Commonwealth’s obligations with regard to international instruments, treaties and conventions to which Australia is a signatory. If this occurs, then it may be appropriate to consider a complaint to the Australian Human Rights Commission (AHRC).

PRACTICAL APPROACH TO LITIGATION INVOLVING DETAINEES

Making a complaint to the AHRC

The AHRC is an independent statutory body, established under the Australian Human Rights Commission Act 1986 (Cth) (AHRC Act). The AHRC has two main functions:

1. to enquire into, and attempt to conciliate, complaints of unlawful discrimination; and

2. to enquire into any act or practice that may be inconsistent with or contrary to any human right.^[15]

As Australia has no federal human rights instrument, the source of these human rights are those afforded under the international treaties or conventions to which Australia is a signatory, and which are declared by the Minister as per s47 of the AHRC Act.^[16] The AHRC is empowered to act, in the manner discussed below, on any relevant failure to comply with the provisions of these treaties and/or conventions.^[17]

While the Australian government is signatory to a number of international instruments, however, it is not legally bound by these provisions within the Australian court system.

Unlike claims for equality rights, where the AHRC can assist in taking the matter to court for unlawful discrimination under an array of federal anti-discrimination acts,^[18] in claims alleging breaches of civil and political human rights, it is unable to refer the matter to a court for conclusive arbitration. Regardless of whether the AHRC finds the Commonwealth to be acting in violation of human rights, there is no provision granting a complainant any court-sanctioned remedies. Having said that, the AHRC can undertake a process that may assist with resolving a claim arising out of a detention centre environment. Generally, the AHRC’s process involves:

(a) lodging a complaint;

(b) undertaking an enquiry; and

(c) arranging and commissioning a conciliation conference.

The process is generally very informal, cheap, involves no application fees or filing fees, is not subject to limitation periods and can encourage informal negotiations in the context of breaches that may have occurred under international law. However, there is also no prospect of litigation to encourage settlement.

In circumstances where no negotiated settlement is reached and the AHRC determines that a breach of human rights has occurred, it can prepare a report of the complaint, including recommendations for action, for the federal attorney-general to consider. This report also must be tabled in Parliament. Such reports include recommendations for preventing a repetition of the act or a continuation of any practice that may have taken place.^[19]

While any recommendations or report might be non-binding, in certain cases, where court proceedings arising out of intentional torts or negligence might be possible, they can prove extremely efficient in encouraging the Commonwealth to approach settlement negotiations in good faith and indeed resolve complaints prior to entering into any formal court system, if possible. For example, in 2011 the AHRC released a report into a matter involving the Yousefi family, finding that the failure to remove the family from detention, having observed deterioration in their mental health, was inconsistent with Articles 7, 9 and 10 of the International Covenant on Civil and Political Rights. Furthermore, the Commission found the detention of Manoochehr Yousefi, who was aged 10, contrary to the Convention on the Rights of the Child. Of particular note was the finding that Manoochehr Yousefi was denied ‘the highest attainable standard of physical and mental health’ (per Article 24).

These findings were followed by recommendations, including formal written apologies from the Commonwealth to all members of the Yousefi family and financial compensation of $1,025,000 to the son, Manoochehr Yousefi, and $675,000 to Mrs Yousefi.

Invariably, the compensation figures influenced the Commonwealth’s decision to settle the matter before it proceeded to court in related negligence proceedings. Thus, although no direct result came out of the AHRC’s report in terms of any enforcement of its findings, its weight in common law proceedings lends it considerable influence, particularly in circumstances where breaches of international human rights conventions have been found.

Tips for cases involving intentional tortious conduct

Both the Commonwealth and the Immigration Department (operating under various guises, currently the Department of Immigration and Border Protection) have undertaken to uphold standards that relate directly to the security of detainees, extending so far as to monitor tensions within detention facilities and take action to manage behaviour to prevent any development of disturbances, personal disputes or physical altercations between detainees.^[20]

Depending on the circumstances, it may also be relevant to consider well-established rules of vicarious liability, particularly with regard to the employee/employer-type relationship in a situation where an assault involves a security guard and a detainee. For example, in circumstances where a security guard engages in criminal conduct not permitted or authorised by the employer – in this case, the Commonwealth – the usual common law defences, such as those in Deatons v Flew,^[21] would apply.

However, in circumstances where an intentional tort occurs between two detainees, there is a clear mandate imposing an obligation on a contracted security company, and by virtue of vicarious liability, the Commonwealth, to either prevent, control or manage such circumstances so as to prevent the assault from occurring. These self-imposed standards would certainly assist in the preparation of any case of this type and potentially allow for those in a detention centre environment to be distinguished from other environments where assaults may occur, such as in licensed premises, as set out in the case of Deatons v Flew. Any practitioner seeking to accept instructions from a detainee or former detainee should undertake a proper examination of any government publications in place as at the date of the potential tortious conduct, as these documents will generally set the standard of care expected of the Commonwealth and will be a useful tool in preparing pleadings and in litigation generally.

Tips for cases involving potential failure to provide proper care and/or treatment

It is not uncommon for asylum seekers and/or refugees to present with an extremely complex clinical history and a vast array of symptoms when arriving at a detention facility, by virtue of their past. On arrival, all detainees will at some point undergo an initial assessment of their clinical and medical needs, usually in the first few weeks of being detained. Those who may have been victims of torture and/or trauma in their home countries will almost certainly need immediate medical attention and ongoing treatment.

The Commonwealth undertakes to provide such healthcare via a service provider. At present, this service provider is International Health and Medical Services (IHMS), which is said to provide primary healthcare through general practitioners, nurses, counsellors and psychologists located within immigration detention facilities.^[22] There is also a general undertaking that emergency and acute healthcare will be provided by local hospitals, with some immigration detention facilities having paramedics or nurses located on site after hours. In reality, many detention centre environments have great difficulty in providing access to certain types of specialists and experts on an ongoing basis.

Do not discount a case merely because a potential claimant received some form of psychological treatment or even had numerous consultations with psychological experts or counsellors during the course of his or her detention. Conduct a proper and detailed examination of the types of attendances that took place and what specifically occurred, in accordance with your client’s instructions. For example, while it would be appropriate treatment for someone who is diagnosed with post-traumatic stress disorder to have a one-hour consultation with a psychologist on an ongoing basis, the reality is that this type of care and treatment is sometimes not available. However, it would be quite inappropriate for someone diagnosed with post-traumatic stress disorder to receive 10- or 15-minute consultations with various counsellors over an extended period of time, with no opportunity to develop any meaningful relationship with a treatment provider or to receive any in-depth treatment for a very severe and significant pre-existing condition or, in some cases, a condition arising from the detention centre environment itself. Again, one must undertake a very close examination of records produced by the Commonwealth in terms of the treatment that may have been provided by one of its service providers, in consultation with Commonwealth publications in place at the time setting out the standard of care expected. Once such information has been obtained, engage an appropriate medical expert in the relevant field to examine those documents, and take a detailed statement from the claimant to determine whether or not treatment was in fact adequate and acceptable, having regard to a potential diagnosis or medical ailment that arises in the detention centre environment. In short, each case would depend on its own facts, but attention to detail may in many cases expose a valid and feasible cause of action, particularly for those detainees who present with a very complicated clinical history and pre-existing diagnoses arising from experiences outside or prior to their incarceration in the immigration detention facility.

COMPENSATION AND/OR DAMAGES

As is usually the case where an individual suffers injury and where a breach of a duty of care can be established, one needs to prove damage. Depending on the causes of action, the heads of damage that might apply include pain and suffering, past and future economic loss, past and future out-of-pocket expenses and past and future care. Depending on the individual facts of each case, common law damages may be payable and so consideration should be given to aggravated and/or exemplary damages, particularly in those cases involving intentional torts and/or administrative failures that may give rise to unlawful detention. However, the courts appear to be increasingly reluctant to make significant awards of exemplary damages in the context of detention centre environments for unlawful detention.^[23] Ultimately, each case will depend on its own facts. There continues to remain a stringent test setting out the conditions for award; specifically, that these types of damages would be awarded only where a defendant has acted with contumelious disregard for the detainee’s rights, or such that their actions constitute malice or conduct that might be insulting, improper and/or defamatory.^[24]

CONCLUSION

With the growing recognition of a non-delegable duty of care on the part of the Commonwealth, a number of feasible causes of action might now be available to many individuals who are found to suffer the adverse consequences of being held indefinitely in Australia’s detention facilities. Whether the vigorous pursuit of these cases on behalf of deserving plaintiffs will one day inspire some kind of policy change to the concept of mandatory detention in Australia and the conditions faced by detainees in those environments remains to be seen.

Joshua Dale is an associate at Carroll & O’Dea Lawyers and Chair of the NSW Human Rights Committee of the Australian Lawyers Alliance. PHONE [phone] EMAIL [e-mail].

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^[1] Migration Act 1958 (Cth), s189(1).

^[2] An offshore place is defined in Migration Act 1958 (Cth) s5 as ‘excised offshore place’; also see Migration Act 1958 (Cth), s189(3).

^[3] [2003] FCAFC 70; (2003) 126 FCR 54.

^[4] [2006] FCA 1807.

^[5] Fernando v Commonwealth of Australia [2014] FCAFC 181.

^[6] Ibid.

^[7] Price v State of New South Wales [2011] NSWCCA 341 per Allsop P at [35].

^[8] Behrooz v Secretary, Department of Immigration and Multicultural and Indigenous Affairs & Ors [2004] HCA 36 per Gleeson CJ. See also dissenting judgment of Kirby J from [81]-[82] for an alternative analysis.

^[9] Ibid per Hayne J at [176].

^[10] MZYYR v Secretary, Department of Immigration and Citizenship & Anor [2012] FCA 694.

^[11] [2014] VSC 593.

^[12] AS v Minister for Immigration and Border Protection [2014] VSC 593 at [24].

^[13] Detention Health Framework – A Policy Framework for Health Care for People in Immigration Detention prepared by the Australian Government Department of Immigration and Citizenship, 2007 and Appendix H: Immigration Detention Standards appended to 2001 report of the Joint Standing Committee on Foreign Affairs, Defence and Trade entitled ‘A Report on Visits to Immigration Detention Centres’ which form part of the Commonwealth’s contract with Australasian Correctional Management (ACM) when it was delivering detention services to the Commonwealth in the early 2000s.

^[14] See <http://www.immi.gov.au.>

^[15] Australian Human Rights Commission Act 1986 (Cth), s11(1)(f).

^[16] These instruments include the International Covenant on Civil and Political Rights; International Covenant on Economic, Social and Cultural Rights; Convention on the Prevention and Punishment of the Crime of Genocide; Convention on the Political Rights of Women; International Convention on the Elimination of all forms of Racial Discrimination; Convention on the Elimination of all forms of Discrimination against Women; Convention against Torture and Other Cruel, Inhuman and Degrading Treatment or Punishment; Convention on the Rights of the Child; Convention on the Reduction of Statelessness; Convention relating to the Status of Stateless Persons; Convention relating to the Status of Refugees; Slavery Convention of 1926; Supplementary Convention on Slavery; and the Convention on the Rights of Persons with Disabilities.

^[17] IAustralian Human Rights Commission Act 1986 (Cth), s47.

^[18] Racial Discrimination Act 1975 (Cth); Sex Discrimination Act 1984 (Cth); Age Discrimination Act 2004 (Cth); Disability Discrimination Act 1992 (Cth).

^[19] See Australian Human Rights Commission Act 1986 (Cth), s29.

^[20] Detention Health Framework – see note 13 above, at clause 5.2, 5.4, 7.2.3 and 7.2.4.

^[21] [1949] HCA 60; (1949) 79 CLR 370.

^[22] See <http://www.immi.gov.au/about/pages/media/fact-sheets/fact-sheet-82.aspx.>

^[23] See Sales v Minister for Immigration and Multicultural Affairs [2006] FCA 1807 and Fernando v Commonwealth of Australia [2014] FCAFC 181.

^[24] For similar cases involving assaults by the police, see Henry v Thompsons [1989] 2 QdR 412(FC); Lackersteen v Jones (1988) NTSC 60; [1988] 92 FLR 6 NT; Jamba Jimba v Lloyd (NT SC, 17 February 1997, unreported, BC97003666).