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SZRWS v Minister for Immigration & Ors (No.2) [2018] FCCA 3876 (18 December 2018)

Last Updated: 17 January 2019

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZRWS v MINISTER FOR IMMIGRATION & ORS (No.2)


Catchwords:
MIGRATION – Application for summary judgment – whether the respondents have an answer to the claim or have reasonable prospects of successfully defending it considered.


Legislation:

Cases cited:
ARJ17 v Minister for Immigration [2018] FCAFC 98
Barker v The Queen [1983] HCA 18; (1983) 153 CLR 338
Dey v Victorian Railways Commissioners (1949) 78 CLR 62
Eliezer v University of Sydney [2015] FCA 1045; (2015) 239 FCR 381
Jefferson Ford Pty Ltd v Ford Motor Company of Australia Limited [2008] FCAFC 60
Kimber v Owners Strata Plan No 48216 [ 2017] FCAFC 226 
Mogilevsky v Leroy (Trustee) [2017] FCAFC 52
SZRWS v Minister for Immigration & Ors [2017] FCCA 3101


Applicant:
SZRWS

First Respondent:
MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:
COMMONWEALTH OF AUSTRALIA

Third Respondent:
SECRETARY, DEPARTMENT OF IMMIGRATION AND BORDER PROTECTION

File Number:
SYG 2727 of 2017

Judgment of:
Judge Driver

Hearing date:
18 December 2018

Delivered at:
Sydney

Delivered on:
18 December 2018

REPRESENTATION

Counsel for the Applicant:
Mr P Webb, QC with Mr V Kline

Solicitors for the Applicant:
Holding Redlich

Counsel for the Respondents:
Mr P Herzfeld

Solicitors for the Respondents:
Australian Government Solicitor

INTERLOCUTORY ORDERS

(1) The Application in a Case lodged on 28 September 2018 and filed on 4 October 2018 is dismissed insofar as it relates to Orders 1 and 2 sought in that application.
(2) The applicant is to pay the first respondent’s costs and disbursements of and incidental to the Application in a Case, to be assessed and, if necessary, taxed in the absence of agreement in accordance with the Federal Court Rules 2011 (Cth).
(3) The second respondent is to pay the applicant’s costs of the interlocutory application filed on 30 August 2017, to be assessed and, if necessary, taxed in the absence of agreement in accordance with the Federal Court Rules 2011 (Cth).
(4) The applicant has leave to file and serve on the respondents any second further amended application, giving full particulars of the claim, by 22 February 2019.
(5) The matter is listed for further directions at 9.30am on 28 February 2019.
(6) The matter is provisionally listed for hearing for three days, commencing at 10.15am on 26 June 2019.
(7) The Court notes the applicant’s undertaking as to damages referred to at [66] of the judgment in SZRWS v Minister for Immigration & Ors [2017] FCCA 3101.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2727 of 2017

SZRWS

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

COMMONWEALTH OF AUSTRALIA
Second Respondent

SECRETARY, DEPARTMENT OF IMMIGRATION AND BORDER PROTECTION
Third Respondent


REASONS FOR JUDGMENT

Introduction and background

  1. On 18 December 2018 I dismissed with costs an Application in a Case filed on 4 October 2018 seeking, relevantly, summary judgment pursuant to the rule 13.07 of the Federal Circuit Court Rules 2001 (Cth) (Federal Circuit Court Rules) made for the purposes of s.17A of the Federal Circuit Court of Australia Act 1999 (Cth) (Federal Circuit Court Act). The following are my reasons for those orders. The application also sought a permanent injunction and other relief. Additional procedural orders were made preparatory to a final hearing.
  2. The background to the proceedings is set out in the judgment of this Court in SZRWS v Minister for Immigration & Ors:[1]
3. The applicant is a detainee at Villawood.
  1. The respondents state, in the notification, that they are doing this to provide detainees with a safe and healthy environment because:
    • a) cooked and raw food quickly becomes contaminated with bacteria and can cause illness if left at room temperature; and
    • b) if food is not commercially packaged and sealed, there is a risk of controlled and prohibited items entering the detention centre.

Affidavit material

  1. The applicant relies on the affidavit of Christine Helen Jones affirmed 28 September 2018 as well as the affidavit of Sabina Callaghan affirmed 28 November 2017 (Callaghan affidavit) filed for the first to third respondents in SZRWS.

Food Policy

  1. The third respondent, the Secretary of the Minister’s Department (Secretary), has created policies applicable to immigration detention facilities (IDFs), contained in a Detention Services Manual.[2]
  2. As referred to in my judgment in SZRWS at [80] and [82]:
  3. The Callaghan affidavit describes the process by which the policy (Food Policy) was developed:
    1. in early 2016, a working group conducted a review; [3]
    2. on 5 March 2016, the Deputy Commissioner Operations endorsed the working group’s recommendation, which comprised the Food Policy;[4]
    1. on 27 May 2016, the Commander Immigration Compliance approved the inclusion of the Food Policy in Chapter 8 of the Detention Services Manual;[5]
    1. in mid 2017, a directive “requiring the implementation of the outside food policy across the immigration detention network” was developed under Ms Callaghan’s guidance;[6] and
    2. on 8 August 2017, the Minister signed a submission noting the planned implementation of the Food Policy.[7]
  4. The final step in its creation and application was the issue, on 11 August 2017, of a directive (the Directive) requiring the implementation of the Food Policy across the immigration detention network (IDN).[8]
  5. The Directive provided:
  6. The restriction against visitors bringing home cooked food items into IDFs admits of no exception. The clear language of the Directive is that it is mandatory across the IDN. In particular, the concession (provided permission is obtained in advance) as regards birthday cakes still requires that they be shop purchased.[9]
  7. The Food Policy should be considered to be a blanket policy.

The Mobile Phone Policy

  1. The Food Policy was originally fused with the so-called Mobile Phone Policy. The submission noting the planned implementation of the Food Policy[10] explained:
  2. In ARJ17 v Minister for Immigration[12] the Mobile Phone Policy was challenged as a blanket policy on the basis that neither s.252 nor s.273 of the Migration Act 1958 (Cth) (Migration Act) authorised the policy.
  3. The Mobile Phone Policy is set out at [10]-[11] of the judgment of Rares J:
  4. The Mobile Phone Policy was found to be invalid by the Full Federal Court as further referred to below.
  5. Rule 13.07 provides that:
  6. Section 17A of the Federal Circuit Court Act is in materially the same terms.

Consideration

Applicant’s contentions

  1. The applicant seeks summary judgment pursuant to rule 13.07 of the Federal Circuit Court Rules or, alternatively, s.17A of the Federal Circuit Court Act. Identical provisions were introduced in order to provide such an application for summary judgment in the High Court, the Federal Court and the then Federal Magistrates Court.
  2. These provisions need not be set out here.
  3. Until the introduction of these provisions, the test to be applied in summary judgment applications required an extraordinarily high bar for success (e.g. “manifestly groundless”).[13]
  4. Following the introduction of the new provisions, they were considered by a good number of judges in the Federal Court and in the then Federal Magistrates Court. Eventually, the question came before the Full Federal Court in Jefferson Ford Pty Ltd v Ford Motor Company of Australia Limited,[14] when the decision was handed down on 15 April 2008. In that case, all three judges resolved to allow the appeal, thus setting aside the summary judgment entered by the trial judge.
  5. Both Rares and Gordon JJ agreed that the purpose of introducing s.31A (the Federal Court equivalent) into the Court’s armoury for dealing with litigation which ought not to be allowed to go to trial was to expand the capacity of the Court summarily to dismiss matters. Rares J and Gordon J both referred to the Explanatory Memorandum and the Second Reading Speech. At [63] Rares J referred to an observation by Lindgren J concerning the purpose of that provision and noted at [73] that the parties in the case accepted that the test to be applied was that which Rares J himself judge had stated in Boston Commercial Services Pty Ltd v GE Capital Finance Australasia Pty Ltd.[15]
  6. Gordon J approved the test suggested by Rares J in the Boston Commercial case, and then went on to add some observations of her own between [124] and [132].
  7. This decision of the Full Federal Court confirmed the approach taken by me in Vivid Entertainment LLC & Ors v Digital Sinema Australia Pty Ltd & Ors[16] at [22]-[30].
  8. In this case, the only distinction between the Mobile Phone Policy case and the Food Policy case is said to have been the time of introduction, a matter determined by administrative decision. Otherwise, the principles established in the Mobile Phone Policy case are said to govern the Food Policy, and the applicant seeks summary judgment.

No authority under the Migration Act

  1. In the circumstances, the Migration Act must be examined to see whether there is any authorisation within it sufficient to provide a source of power for a blanket policy.
  2. The Full Federal Court examined this question in ARJ17. In that case, the blanket policy sought to deny detainees possession of mobile phones and SIM cards in immigration detention centres, and provided for search and seizure of mobile telephones and SIM cards.
  3. In the original hearing, the Commonwealth successfully submitted to the trial judge that authority to take and retain mobile phones from detainees arose by implication from the power under s.273 to cause detention centres to be “established and maintained”, carrying an obligation to maintain order and the security of staff and detainees. The trial judge held that as possession of mobile phones in detention had the potential to both assist in escape and cause harm to detainees, it was within the scope of s.273 to take and retain mobile phones which were found in the possession of detainees. The trial judge stated that not only did s.273(2) provide the power to regulate conduct in detention centres, the power in s.273(1) to “maintain” centres provided a broad power to do just that. The trial judge observed that otherwise there would be no power at all to regulate conduct in detention centres.[17] The Commonwealth also argued that s.273(1) authorises the Minister to cause detention centres to be “established and maintained” and the notion of “maintaining” a detention centre in this context necessarily encompassed its order and security, including the safety of staff and detainees. The Commonwealth submitted that this was apparent from the scheme established by ss.252-252G. The Commonwealth posited that the reference to keeping persons in immigration detention must be understood to include keeping them in a safe, ordered and secure place of detention and to taking such action and using such force as is reasonably necessary to do so. Accordingly, the power to detain and keep unlawful non-citizens in immigration detention conferred by ss.189 and 196 includes the power to take such action and use such force as is reasonably necessary to keep places of immigration detention safe, ordered and secure. An aspect of that power must be a power to control physical items which are the property of detainees where they pose a risk to the safety, order and security of places of immigration detention, such as detention centres.[18]
  4. The Commonwealth also raised a further argument that the Mobile Phone Policy was not purported to be made under any statutory power and did not purport to have any legal force. The Commonwealth submitted that the Mobile Phone Policy is merely an expression of opinion and is not binding upon authorised officers. Since the policy had no statutory basis, it could not be ultra vires.
  5. Lastly, the Commonwealth contended that the power in s.73(1) comprehended all that the regulation-making power in s.273(2) and (3) entailed within the word “maintained”. They argued that the word “maintained” gave the Governor-General power to require officers to implement a policy of removing mobile phones from all detainees in detention centres.[19]
  6. His Honour Rares J stated at [64]:
  7. Rares J went on to state, in response to an argument that the blanket policy was a direction by the Secretary, that nothing in the Migration Act on which the respondents relied provided a source of power for the making of the blanket policy.[20]
  8. Rares J then went on to find that the blanket policy was invalid on the ground that it is not authorised by any provision of the Migration Act, and that the proposed actions of authorised officers to confiscate mobile phones and SIM cards in compliance with the policy would be invalid.[21]
  9. His Honour Flick J observed in relation to the Commonwealth’s arguments the following at [103] and [104]:
  10. Flick J went on to state at [108]:
  11. Flick J went onto observe that, however wide the ambit of any power to “maintain” a detention centre facility may be construed, it would not authorise the policy change by mere Ministerial direction. Even the validity of a regulation made pursuant to s.273(2) and s.504 which sought to give effect to the policy objective of confiscating mobile phones and SIM cards would not be free of doubt.[22] He stated that the policy in that case was invalid. He stated the directions to seize and retain the mobile phones and SIM cards of detainees in detention centres are not supported by a sufficiently unambiguous source of legislative power.
  12. Rangiah J relevantly agreed with Rares and Flick JJ.[23]
  13. This is said to be a much simpler case, involving only one possible provision of the Migration Act, namely, s.273. (Reliance was placed by the Commonwealth in ARJ17 upon a number of different provisions of the Migration Act, but none of them are relevant to the discussion of the validity of the Food Policy).
  14. This decision unanimously rejected any argument that the Mobile Phone Policy could be supported by any provision of the Migration Act. This Court is invited to reject the argument that the Food Policy could be so supported.

Minister’s contentions

  1. The Food Policy involves, relevantly, a generally applicable restriction on the food which visitors to immigration detention centres may bring into those centres. There are said to be at least three sources of power for any such policy.
  2. First, the Commonwealth, as occupier of the premises comprising detention centres, has a common law right to decide who may enter such premises and the conditions upon which they may do so.[24] In the exercise of that right, the Commonwealth may restrict the entry of visitors bearing food which does not comply with the Food Policy.
  3. Secondly, s.273 of the Migration Act empowers the Minister, on behalf of the Commonwealth, to “cause detention centres to be established and maintained”. The respondents’ position is that the power to cause detention centres to be “maintained” extends beyond physical upkeep and repair, to taking other steps necessary to maintain detention centres as facilities at which detention can be effectively achieved. The respondents’ position is that, having regard to the aims of the Food Policy, the policy is empowered by s.273 as being directed towards maintaining detention centres in this sense.
  4. Thirdly, s.189(1) of the Migration Act empowers and requires officers to detain any unlawful non-citizen in Australia and s.196(1) requires any such person to be kept in immigration detention until he or she is removed or deported, granted a visa or taken to a regional processing country. Section 5(1) defines “detain” to mean, relevantly, “keep, or cause to be kept, in immigration detention ... and includes taking such action and using such force as are reasonably necessary to do so”. The respondents’ position is that, having regard to the risks to which the Food Policy is directed, the policy is reasonably necessary in order to keep detainees in immigration detention.
  5. The correctness, or otherwise, of the Commonwealth’s reliance on these three sources of power is not conclusively answered by the decision in ARJ17. That case concerned a policy decision to remove from detainees their mobile phones upon entry into immigration detention centres. It thus involved the Commonwealth taking away the personal property of detainees. In those circumstances, a statutory source of authority was required, for absent statutory authority the Commonwealth has no right to interfere with private property rights. The Full Federal Court concluded that, relevantly, neither s.273 nor ss.5(1), 189(1) and 196(1) provided such a source of authority.
  6. The Minister submits that the conclusion in ARJ17 says nothing at all about the first source of power relied upon by the Commonwealth in this case, namely the Commonwealth’s common law rights as an occupier of premises. Such a source of power was not relied upon in ARJ17, and therefore was not the subject of consideration by the Full Federal Court, because it could not be relied upon to justify depriving detainees of their own property. But the Food Policy at issue in this case does not do that. That is said to be a critical distinction. The applicant’s submissions are thus said to be wrong to submit that the only distinction between the policy at issue in ARJ17 and the Food Policy at issue in this case is the time of their introduction.
  7. In relation to s.273 of the Migration Act, it may be accepted that Rares J in ARJ17 held that that power was limited to physical upkeep and repair.[25] However, Flick J[26] left open a broader view, consistently with the view on which the respondents rely in this case. His Honour said at [108]:
  8. Rangiah J at [112] appears to have agreed with Flick J in this regard.
  9. The reason that Flick J rejected the Commonwealth’s reliance upon s.273 in ARJ17 was that the Mobile Phone Policy involved interference with detainees’ property rights. Once again, because this case does not involve interference with detainees’ property rights, the fact that the Court in ARJ17 rejected the Commonwealth’s reliance on s.273 in that case does not mean that s.273 is unavailable as a source of power in this case.
  10. In relation to ss.5(1), 189(1) and 196(1), Rares J accepted that, provided a particular action is objectively reasonably necessary to keep a detainee in immigration detention, these provisions would justify taking action such as removing a weapon from a detainee.[27] However, his Honour held that removing mobile phones from all detainees was not self-evidently reasonably necessary to keep that detainee, or others, in immigration detention, and that the evidence did not show that that was so.
  11. Flick J rejected the Commonwealth’s reliance on these provisions as follows:[28]
  12. Again, Rangiah J[29] appears to have agreed with Flick J in this regard.
  13. Thus, the Court’s rejection of the Commonwealth’s reliance in ARJ17 on ss.5(1), 189(1) and 196(1) was because those provisions did not justify taking away the particular kind of personal property at issue there, ie mobile phones, having regard to the state of the evidence concerning the extent to which mobile phones might lead to the escape of detainees. That does not determine the position in this case. In the first place, once again, the Food Policy does not involve taking away the personal property of detainees. In the second place, the state of the evidence, at a final hearing, concerning the risks posed by outside food that is excluded by the Food Policy will no doubt be different to the state of the evidence concerning mobile phones in ARJ17.
  14. This leads to a more general point, relevant to both s.273, on one hand, and ss.5(1), 189(1) and 196(1), on the other. As is apparent from the reasons in ARJ17 described above, the application of these provisions depends on the particular facts, as shown by the evidence. The respondents submit with some force that they should have the opportunity to lead evidence at a trial directed to showing the engagement of these provisions to support the Food Policy.

Resolution

Relevant principles

  1. There is no dispute between the parties as to the relevant principles to be applied.
  2. Paragraph 1 of the orders sought in the application in a case is expressed to rely on rule 13.07 of the Federal Circuit Court Rules. That rule empowers the giving of summary judgment on a claim or part of a claim if, relevantly, “the Court is satisfied that the opposing party has no reasonable prospect of successfully defending the claim or part”.
  3. The applicant, at [18] of his submissions, relies, in addition, on s.17A of the Federal Circuit Court Act. It is expressed in equivalent language to rule 13.07.
  4. The principles applicable to the grant of summary judgment pursuant to one or other of these provisions, or the similarly expressed provisions applicable to the Federal Court, are well established.[30] Relevantly, they include the following:
    1. while the test in rule 13.07 and s.17A is more relaxed than the previous approach to summary judgment, an application for summary judgment must nonetheless be approached with caution. The power to give summary judgment is only to be exercised in the more obvious instances. A party seeking summary judgment thus bears a heavy onus;
    2. where the case depends on a question of fact, the moving party must show that the defence rests on a question of fact that can truly be described as fanciful, trifling, implausible, improbable, tenuous or one that is contradicted by all the available documents or other materials. Conversely, an application will not succeed if there appears to be a real question of fact to be determined between the parties, especially if that question depends on what evidence will be adduced at the trial; and
    1. where the case depends on a question of law, the moving party must show that it is straightforward and confined, or is trite in the sense that it is well-settled on authority, such that the question can be resolved summarily without the necessity for a full trial. Conversely, the application will fail if the Court is satisfied that the case involves a question of law that is serious or important, or is difficult and therefore likely to require lengthy argument for its resolution, or involves conflicting authority, or is apparently arguable, yet novel.

Application of the principles

  1. The affidavit evidence before the Court goes only part way to establishing the conditions necessary for summary judgment. Importantly, in this case, the proceedings began with an interlocutory application and my interlocutory judgment in SZRWS. That was 12 months ago. In that judgment, I granted an interlocutory injunction having regard to the particular circumstances of the applicant and the impact of the Food Policy upon him.
  2. In the ordinary course, the issues raised in the proceedings would later be dealt with on a final basis in order to determine whether a final injunction should be granted or other relief provided. The only thing which has happened since then which bears on the present application for summary judgment is the decision of the Full Federal Court in ARJ17. The proposition put by the applicant is that that judgment renders summary judgment in this case appropriate.
  3. While these proceedings deal with the Food Policy at detention centres, ARJ17 dealt with a policy concerning mobile phones. The two policies share something of a common history but they are different. The Food Policy regulates what food may be brought into a detention centre by a visitor. The Mobile Phone Policy involved the confiscation of the property of detainees. It follows, in my view, that the findings of the Full Federal Court in ARJ17 do not foreclose arguments available to the Commonwealth in these proceedings.
  4. First, as I have noted, there is a significant difference between a policy restricting the entry of food into Commonwealth-controlled premises and the confiscation of personal property. I accept the Minister’s submission that the decision in ARJ17 does not necessarily prevent arguments being advanced on a final hearing in this matter concerning statutory support for the Food Policy. However, even if those arguments are not available, as put by counsel for the Minister, it would also be open to the Commonwealth to argue that the Commonwealth’s common law rights as an owner or occupier of property might support the Food Policy. Further, the respondents should have the opportunity to lead evidence to attempt to make good their contentions.
  5. This leads me to the view that the present state of these proceedings is not one that could support summary judgment for the applicant. The issues raised in the proceedings should be dealt with at a final hearing.

I certify that the preceding sixty-one (61) paragraphs are a true copy of the reasons for judgment of Judge Driver

Date: 16 January 2019

[1] [2017] FCCA 3101.
[2] Callaghan affidavit at [4].
[3] Ibid at [5].
[4] Ibid at [6], see also exhibit SC1.
[5] Ibid at [7], see also exhibit SC2.
[6] Ibid at [9].
[7] Ibid at [9], see also exhibit SC3.
[8] Ibid at [10], see also exhibit SC4.
[9] Exhibit SC9 at [2].
[10] Exhibit SC3.
[11] Callaghan affidavit, exhibit SC3, page 23 at [2].
[12] [2018] FCAFC 98.
[13] see Dixon J in Dey v Victorian Railways Commissioners (1949) 78 CLR 62 and Barwick CJ in General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69; (1969) 112 CLR 125.
[14] [2008] FCAFC 60.
[15] [2006] FCA 1352; (2006) 70 IPR 146.
[16] [2007] FMCA 157.
[17] see ARJ17 at [18] and [19].
[18] see [47].
[19] see [63].
[20] see [95].
[21] see [97]-[98].
[22] see [110].
[23] see [112].
[24] See for example, Barker v The Queen [1983] HCA 18; (1983) 153 CLR 338.
[25] at [63]–[66].
[26] at [108].
[27] at [70]–[73].
[28] at [105].
[29] at [112].
[30] See for example ASIC v Cassimatis [2013] FCA 641; (2013) 220 FCR 256 at [15]–[67]; Eliezer v University of Sydney [2015] FCA 1045; (2015) 239 FCR 381 at [35]–[40]; Mogilevsky v Leroy (Trustee) [2017] FCAFC 52 at [60]–[61]; Kimber v Owners Strata Plan No 48216  [2017] FCAFC 226  at [62].

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