SBEG v Commonwealth of Australia [2012] FCAFC 189

FEDERAL COURT OF AUSTRALIA

SBEG v Commonwealth of Australia [2012] FCAFC 189 Citation: SBEG v Commonwealth of Australia [2012] FCAFC 189

Appeal from: SBEG v Secretary, Department of Immigration and Citizenship (No 2) [2012] FCA 569

Parties: SBEG v COMMONWEALTH OF AUSTRALIA

File number: SAD 139 of 2012

Judges: KEANE CJ, LANDER & SIOPIS JJ

Date of judgment: 20 December 2012

Catchwords: NEGLIGENCE – where appellant unlawful non-citizen refugee in immigration detention – where ASIO issued adverse security assessment against appellant under Australian Security Intelligence Organisation Act 1979 (Cth) – where cl 866.225 of Sch 2 of Migration Regulations 1994 (Cth) prevented the appellant from being granted a protection visa – where High Court has now declared cl 866.225 to be pro tanto invalid: Plaintiff M47/2012 v Director-General of Security [2012] HCA 46 (5 October 2012) – where appellant claims place and circumstances of detention causing mental harm – scope of duty of care owed to appellant – whether appropriate to impose duty of care on respondent to exercise statutory power to approve form of detention in which the appellant could come and go as he pleased – whether such form of detention falls within definition of immigration detention in s 5(1)(b)(v) of Migration Act 1958 (Cth) – whether breach of duty by keeping appellant in "environment of incarceration" – whether permanent injunction seeking transfer of appellant should be granted – ss 5(1), 189, 196(3), 197AB, 197AC, 197AE 500(1)(c) of Migration Act 1958 (Cth)

Legislation: Australian Security Intelligence Organisation Act 1979 (Cth) Migration Act 1958 (Cth) ss 5(1), 189, 196(3), 197AB, 197AC, 197AE 500(1)(c) Migration Regulations 1994 (Cth) Sch 2 cl 866.225