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Lees, Nicki --- "Onshore immigration detention and personal injury claims: A Christmas Island case study" [2018] PrecedentAULA 44; (2018) 147 Precedent 26


ONSHORE IMMIGRATION DETENTION AND PERSONAL INJURY CLAIMS

A CHRISTMAS ISLAND CASE STUDY

By Nicki Lees

Personal injury claims for people seeking asylum can achieve compensation for harmful conditions within onshore immigration detention centres and hold the government to account for such conditions. A case study of Maurice Blackburn’s matter of AS v Minister for Immigration & Ors highlights some of the key challenges and lessons for practitioners in bringing such claims.

INTRODUCTION

AS was five years old when she arrived on Christmas Island by boat. Along with her family, she was detained at Christmas Island Immigration Detention Centre between July 2013 and August 2014.[1] During this time, AS developed significant mental and physical health problems including post-traumatic stress disorder.

AS subsequently became the lead plaintiff in a large class action known as AS v Minister for Immigration and Border Protection & Ors.[2] This case tested a number of the legal issues surrounding the immigration detention regime in Australia, particularly in regards to personal injury suffered as a result of the conditions of detention.

Using the matter of AS as a case study this article discusses claims for negligence arising out of immigration detention in mainland Australia. It identifies three interlocutory issues that arose in this case that are relevant to future personal injury claims and reflects on some of the other general challenges facing practitioners in bringing such claims.

THE LEGAL FRAMEWORK OF AUSTRALIA’S IMMIGRATION DETENTION REGIME

The mandatory detention of people seeking asylum is prescribed within s189 of the Migration Act 1958 (Cth) (Migration Act), which states, ‘[i]f an officer knows or reasonably suspects that a person in the migration zone (other than an excised offshore place) is an unlawful non-citizen, the officer must detain the person.[3]

This detention may be for an indefinite period, as the High Court confirmed in the decision of Al Kateb v Godwin.[4] However, the later decision of Plaintiff S4 v Minister for Immigration and Border Protection & Anor[5] clarified the circumstances in which this detention can occur. Plaintiff S4 confirms that ‘detention pursuant to the Migration Act can only lawfully occur in pursuit of three possible purposes’: the purpose of removal from Australia, the purpose of determining an application for a visa or determining whether to permit such an application for a visa.[6]

Detention under the Migration Act can constitute held detention,[7] detention in an alternative place of detention[8] and community detention pursuant to a residence determination under s197AB of the Migration Act.[9] This article focuses only on the first of these, this being held detention.

While immigration detention itself is mandatory, the conditions of this detention can give rise to a claim for damages. In Behrooz v Secretary, Department of Immigration and Multicultural and Indigenous Affairs[10] the High Court held that ‘[h]arsh conditions of detention may violate the civil rights of an alien... If those who manage a detention centre fail to comply with their duty of care, they may be liable in tort.’[11] However, the Court noted that despite this, the detention remains lawful, in that ‘...the negligence does not alter the nature of the detention’.[12]

THE COMMONWEALTH’S DUTY OF CARE TO INDIVIDUALS IN IMMIGRATION DETENTION

The Commonwealth owes a non-delegable duty of care to individuals held in immigration detention. In S v Secretary, Department of Immigration & Multicultural & Indigenous Affairs,[13] Justice Finn of the Federal Court refers to this non-delegable duty of care, noting that people in immigration detention ‘are without freedom and without capacity to provide for their own needs, special or otherwise...’[14] He therefore found that such individuals have ‘a special dependence but particularly so if they suffer from mental illness’.[15]

In defining the scope of this duty Justice Finn found that ‘the Commonwealth had to ensure both that the mental health care services so provided were reasonably designed to meet the mental health care needs of Baxter’s detainees and that the requisite level of mental health care was in fact being provided and with reasonable care and skill’.[16] In the matter of AS, we argued that this reasonableness extends to the provision of both mental and physical healthcare.

AS v MINISTER FOR IMMIGRATION AND ORS

The matter of AS was issued in 2014 against the Minister for Immigration and Border Protection (the Minister) and the Commonwealth of Australia (the Commonwealth). The defendants joined Serco and International Health and Medical Service (IHMS) as third parties to the proceeding.[17]

It was initially commenced as a class action in the Supreme Court of Victoria, but was ultimately declassed in 2017 as Justice Forrest held that there was insufficient commonality between the group members for it to continue as a class action.[18] As such, when reference is made to the matter of AS in this article it is a reference to her individual personal injury claim only, which was resolved in 2017.

During her time in detention AS was diagnosed with various physiological and physical injuries, including post-traumatic stress disorder. Maurice Blackburn alleged that AS suffered these injuries as a result of poor conditions of detention and the defendants’ subsequent failure to provide her and her parents with reasonable healthcare.

The allegations regarding conditions of detention included poor accommodation facilities, poor quality food, inadequate play areas and activities for children, a failure to provide adequate schooling and a forced separation of AS from her mother.

We argued that it was reasonably foreseeable that a child in immigration detention on Christmas Island could suffer an injury or an exacerbation of an existing injury, particularly due to their vulnerability in such an environment. Despite allegedly being aware of this vulnerability we argued that the defendants failed to take the reasonable steps to provide adequate healthcare and appropriate conditions of detention, therefore breaching their duty of care.

In their response to these claims, the defendants accepted that the Commonwealth owes a non-delegable duty of care to provide reasonable healthcare to persons held in detention on Christmas Island pursuant to the Migration Act.[19] However, the Commonwealth denied that it had breached this duty of care.

INTERLOCUTORY ISSUES IN AS RELEVANT TO OTHER PERSONAL INJURY CLAIMS

The matter of AS involved a number of interlocutory challenges. A brief analysis of three of these challenges is useful for other practitioners bringing similar personal injury claims in the future.

Access to witnesses

An issue common to all personal injury claims relating to immigration detention is that of being able to speak with potential witnesses. Three layers of confidentiality obligations may prevent lawyers from speaking with potential witnesses.

Section 42 of the Australian Border Force Act 2015 (Cth) prohibits the disclosure of information by an ‘entrusted’ person working within an immigration detention centre.[20] The penalty is up to two years imprisonment.[21] Furthermore, s70 of the Crimes Act 1914 (Cth) makes it an offence for a Commonwealth officer to disclose any fact that comes to their knowledge by virtue of being a Commonwealth officer. This also carries a penalty of up to two years imprisonment.[22] In the matter of AS, the above-mentioned statutory provisions were ultimately dealt with by orders of the Court.[23]

An additional issue of contractual obligations of confidentiality arose in the matter of AS when we requested to speak with a Serco guard who had specific knowledge of AS’s detention. In response, Serco argued that while lawyers for AS were able to compel Serco employees to give evidence at trial, the Court should not override Serco’s contractual right to insist on confidentiality prior to the trial.[24]

Following an interlocutory hearing on this issue, Justice Forrest determined that the lawyers for AS should be able to confer with the witness prior to trial. In coming to this decision, Justice Forrest stated that if the plaintiff’s lawyers had to call the witness cold it would affect the orderly management of the trial whereas there was ‘no unfairness’ to Serco in the lawyers for the plaintiff having such conversations.[25] Justice Forrest also took into consideration the fact that that AS was only eight years old and her parents spoke limited English and did not have knowledge of the internal workings of the defendant. As such, his Honour noted that it is important that the plaintiff be able to collect evidence from other witnesses with such knowledge.[26]

Justice Forrest ultimately found that ‘there is a real and identifiable public element in the efficient and expeditious administration of justice that makes it necessary for the obligation of confidentiality to be dispensed with. This outweighs any public interest in maintaining the contractual relationship between Serco and [the witness].’[27]

Section 4AA of the Migration Act

There was also an interlocutory dispute as to whether s4AA of the Migration Act gives rise to an independent and actionable statutory duty. Section 4AA states that ‘[t]he Parliament affirms as a principle that a minor shall only be detained as a measure of last resort’.[28] This detention does not include a minor residing at a place in accordance with a residence determination.[29]

The defendants argued that s4AA ‘is no more than an aspirational statement of principle to be applied to other provisions within the Act’.[30] However, the plaintiff argued that s4AA creates an independent cause of action against the defendants for a number of reasons, including: using the particular wording ‘shall’ rather than ‘may’; the fact that ‘principle’ alludes to ‘something more than aspirational’; and that the intention to create a private right can be inferred if there is no other remedy for its breach.[31] Further, we argued that given that the Commonwealth is already bound to exercise due care under the general law of negligence, a breach of s4AA ought to give rise to a private right of action for the reasons as per Dixon J in O’Connor v S P Bray Ltd.[32]

Ultimately, the Victorian Court of Appeal disagreed with the above arguments and found in favour of the respondents.[33]

However, the Court of Appeal did make note of the fact that while the provision does not create a private right in itself, ‘the words of s4AA of the Act must be given operation, and not merely regarded as some sort of surplusage’.[34] Further, that in making decisions ‘relevant decision-makers (including the Minister) are required to do so in accordance with the principle affirmed in s4AA(1)’.[35] This comment can assist in informing the standard of care in future personal injury claims and is a basis by which to assess the reasonableness of the actions of a decision-maker in respect of the detention of minors.

Public interest immunity claim

This case also involved an interlocutory hearing regarding the ability of the plaintiff to access certain documents which the Commonwealth objected to producing on the basis that they are protected from disclosure by public interest immunity. These documents were largely Red Cross documents that included references to the conditions of detention on Christmas Island. Associate Justice Daly found that, while the documents were relevant to AS, the plaintiff was not entitled to access or rely upon such documents for three main reasons: that they ‘related to a matter of state...in that they inform the proper functioning of the Commonwealth’s management of detention centres’; that it is in the public interest for the Red Cross to be able to make ‘full and frank observations and recommendations’ regarding detention centres without such information becoming public; and that disclosure of the documents have the potential to harm Australia’s foreign relations.[36]

The issue of public interest immunity is likely to arise in a number of future personal injury claims involving immigration detention. In seeking to gain access to documents pertaining to detention policy, solicitors must ensure that the documents sought are not within an established class of protected documents. It is clear from the matter of AS that Red Cross documents constitute such a class. The status of other such similar documents will surely be the subject of further litigation.

LESSONS FROM THE MATTER OF AS

Disentanglement of injuries

As emerged from the High Court’s decision in Behrooz v Secretary, it is the conditions of detention, not the fact of detention that can give rise to a personal injury claim for damages.[37] As such, a significant challenge in bringing such claims is the disentanglement of injuries to understand what the compensable injury is. This challenge is most evident in claims for psychiatric harm. In such claims clear medical evidence needs to be obtained that goes to the extent of the psychological harm caused by negligent conditions of detention, rather than by the fact of detention itself.

This difficulty in disentangling injuries can also be seen in cases of pre-existing physical and psychiatric injuries. In obtaining medical opinions as to the cause of an injury or the exacerbation of a pre-existing injury, doctors will often require a detailed medical history of the client. If such records even exist at all they can be extremely difficult and often impossible to obtain from individuals’ countries of origin, given the circumstances in which these individuals have fled.

These challenges often make it difficult to quantify the value of personal injury claims relating to immigration detention.

Vulnerability of the clients

It goes without saying that people seeking asylum are a cohort with particular vulnerabilities.

The fact that these individuals are in detention is a vulnerability in itself. As discussed above in the case of S v Secretary, individuals in immigration detention have a ‘special dependence’ on the Commonwealth and reasonable care must be taken as a result.[38] The specific vulnerability of children in immigration detention is also noted in two reports by the Australian Human Rights Commission.[39]

The vulnerabilities of such clients also include the fact that they will often not yet have been granted a protection visa. Indeed, the most common question and hesitation from potential clients is whether their application for protection will be affected by any other legal claims.

Many such individuals do not speak English and feel overwhelmed by the Australian legal system. It is therefore not uncommon for people seeking asylum or refugees to approach a lawyer after their statute of limitations has expired, often because they had no understanding of their legal rights or they were too scared to come forward before their protection visa had been granted.

Use of private service providers within immigration detention centres

While the Commonwealth owes a non-delegable duty of care to individuals in onshore immigration detention centres there is often a push to share liability with third party service providers. For example, as mentioned above, the Commonwealth joined Serco and IHMS to the AS proceeding. However, the underlying principle remains that if the Commonwealth ‘contracts out’ the provision of services, it must ensure that reasonable care is taken by those whom it contracts to provide the services.

Jurisdiction

The applicable substantive law to a personal injury claim involving the conditions of immigration detention is the law of the state in which the tort occurred. For Christmas Island claims, the applicable substantive law is thus that of Western Australia.

WHERE NEXT?

While such claims may sound unique in nature, at their core they are straightforward personal injury claims and should essentially be run like any other personal injury claim in an Australian jurisdiction.

However, the situation is more complicated for personal injury claims involving offshore detention. We are seeing an increase in injuries suffered by those detained on Nauru or Manus Island. There are a number of claims currently before the courts in regards to the Commonwealth’s alleged duty of care to individuals detained offshore and this is surely the ‘next frontier’ for personal injury claims for people seeking asylum.

Overall, these claims, and particularly the matter of AS, highlight the important nature of public interest litigation. Claims for damages for individuals in immigration detention are often tough cases in which not every argument is successful. However, this doesn’t undermine the importance and value of the case. There is inherent merit in standing up to the powerful to keep them accountable for the way in which they treat those in their care. It is a lawyer’s job to ensure that we keep asking the courts the right questions to allow the law to ensure such accountability.

Nicki Lees is a Social Justice Associate at Maurice Blackburn Lawyers. PHONE (03) 9605 2623 EMAIL nlees@mauriceblackburn.com.au.


[1] AS v Minister for Immigration & Border Protection [2017] VSC 137, [4].

[2] AS v Minister for Immigration & Border Protection [2014] VSC 593.

[3] Migration Act 1958 (Cth), s189.

[4] Al-Kateb v Godwin [2004] HCA 37.

[5] Plaintiff S4 v Minister for Immigration and Border Protection & Anor [2014] HCA 34.

[6] Ibid, [26].

[7] Migration Act 1958 (Cth), s5.

[8] Ibid.

[9] Ibid, s197AB.

[10] Behrooz v Secretary, Department of Immigration and Multicultural and Indigenous Affairs [2004] HCA 36.

[11] Ibid, [21].

[12] Ibid.

[13] S v Secretary, Department of Immigration & Multicultural & Indigenous Affairs [2005] FCA 549, [212].

[14] Ibid, [210].

[15] Ibid.

[16] Ibid.

[17] AS v Minister for Immigration & Border Protection (No. 6) [2016] VSC 774, [3].

[18] AS v Minister for Immigration & Border Protection [2017] VSC 137, [113].

[19] As noted by his Honour Justice Kaye in AS v Minister for Immigration and Border Protection [2014] VSC 593, [24].

[20] Australian Border Force Act 2015 (Cth), s42(1)(a).

[21] Ibid, s42(1).

[22] Crimes Act 1914 (Cth), s70.

[23] AS v Minister for Immigration & Border Protection (No. 6) [2016] VSC 774, [5].

[24] Ibid, [6].

[25] Ibid, [39].

[26] Ibid, [40].

[27] Ibid, [47].

[28] Migration Act 1958 (Cth), s4AA(1).

[29] Ibid, s4AA(2).

[30] AS v Minister for Immigration & Border Protection [2016] VSCA 206, [4].

[31] Ibid, [13]-[20].

[32] Ibid, [23].

[33] Ibid, [2].

[34] Ibid, [29].

[35] Ibid.

[36] AS v Minister for Immigration & Border Protection [2017] VSC 162, [95(a)-[95(c)].

[37] See above note 10, [21].

[38] See above note 13.

[39] The Australian Human Rights Commission, ‘The Forgotten Children: National Inquiry into Children in Immigration Detention’ (2015); and The Australian Human Rights Commission, ‘A Last Resort? National Inquiry into Children in Immigration Detention’ (2004).


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