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

FEDERAL COURT OF AUSTRALIA

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

Parties: SBEG v SECRETARY, DEPARTMENT OF IMMIGRATION AND CITIZENSHIP, COMMONWEALTH OF AUSTRALIA and MINISTER FOR IMMIGRATION AND CITIZENSHIP

File number: SAD 334 of 2011

Judge: BESANKO J

Date of judgment: 4 June 2012

Catchwords: NEGLIGENCE – where applicant unlawful non-citizen refugee in immigration detention – where ASIO issued adverse security assessment against applicant – where applicant claims place and circumstances of detention causing mental harm – scope of duty of care owed to applicant – whether appropriate to impose duty of care on respondents to exercise statutory power to approve a place of detention within the definition of immigration detention in s 5(1) of Migration Act 1958 (Cth) – whether breach of duty by failure to transfer applicant – whether breach of duty by failure to adequately treat – whether permanent injunction seeking transfer of applicant should be granted – ss 5, 197AB, 197AC of Migration Act 1958 (Cth). Held: The application must be dismissed.

Legislation: Australian Security Intelligence Organisation Act 1979 (Cth) s 37 Civil Liability Act 1936 (SA) Civil Liability Act 2002 (WA) Immigration (Guardianship of Children) Act 1946 (Cth) ss 4AAA, 6 Migration Act 1958 (Cth) ss 5, 189, 196, 197AB, 197AC, 197AE Public Service Act 1999 (Cth) s 57 Wrongs Act 1958 (Vic)