Soh v Commonwealth of Australia [2008] FCA 520

FEDERAL COURT OF AUSTRALIA

Soh v Commonwealth of Australia [2008] FCA 520

TORTS – false imprisonment – lack of authority to detain "unlawful non-citizen" in State prison TORTS – novel torts – intentional "unconstitutional detention" TORTS – misfeasance in a public office ADMINISTRATIVE LAW – judicial review – grounds of review – procedural fairness – existence of obligation – requirement to give procedural fairness before transferring unlawful non-citizen in immigration detention to State prison ADMINISTRATIVE LAW – judicial review – grounds of review – procedural fairness – consequence of failure to accord procedural fairness – illegality of detention in State prison Held: There is a duty to accord procedural fairness to an unlawful non-citizen in making decision to transfer to a State prison or remand centre – duty breached – allegation of denial of procedure fairness first made 8 years later – no formal declaration of invalidity should be made – no illegality of detention as a result. WORDS AND PHRASES – "in a prison or remand centre of the Commonwealth, a State or a Territory" Migration Act 1958 (Cth) s 5 Correctional Centres Act 1952 (NSW) Behrooz v Secretary, Department of Immigration and Multicultural and Indigenous Affairs (2004) 219 CLR 486 cited Chu Kheng Lim v Minister for Immigration Local Government and Ethnic Affairs (1992) 176 CLR 1 cited Jadwan Pty Ltd v Secretary, Department of Health and Aged Care (2003) 143 FCR 1 cited Leghaei v Director General of Security [2005] FCA 1576 applied Miller v The Queen (1985) 24 DLR (4th) 9 cited Minister for Immigration & Multicultural Affairs v Bhardwaj (2002) 209 CLR 597 discussed Northern Territory v Mengel (1994) 185 CLR 307 cited Pidoto v Victoria (1943) 68 CLR 87 cited Prisoners A to XX Inclusive v State of New South Wales (1995) 38 NSWLR 622 cited R v Deputy Governor of Parkhurst Prison; Ex parte Hague [1992] 1 AC 58 cited Re Commonwealth; Ex parte Marks (2000) 177 ALR 491 cited Re Minister for Immigration and Multicultural Affairs; Ex parte Miah (2001) 206 CLR 57 cited