Burgess v Commonwealth of Australia [2020] FCA 670

FEDERAL COURT OF AUSTRALIA

Burgess v Commonwealth of Australia [2020] FCA 670 File number: SAD 73 of 2018

Judge: BESANKO J

Date of judgment: 20 May 2020

Catchwords: MIGRATION — where the applicant held a Class BF (Subclass 155) Resident Return Visa — where the Minister for Immigration and Border Protection purported to cancel the applicant's visa under s 501(3) of the Migration Act 1958 (Cth) on two relevant occasions — where the applicant was taken into immigration detention — where the decisions of the Minister were quashed by the Federal Court of Australia — where the effect of the orders of the Court is that the applicant was a lawful non-citizen for the duration of his detention TORTS — false imprisonment — whether the applicant was unlawfully detained — whether the applicant was detained for the purposes of s 189 of the Act — whether the applicant was detained by officers within the meaning of s 5 of the Act — whether detaining officers held a reasonable suspicion that the applicant was an unlawful non-citizen — whether s 196(4) and (5)(b) of the Act authorises continuing detention irrespective of whether s 189 is satisfied CONSTITUTIONAL LAW — whether s 196(4) and (5)(b) of the Act are constitutionally valid — whether the operation of s 196(4) and (5)(b) advanced by the respondent would contravene Ch III of the Constitution — whether detention required and authorised by s 196(4) and (5)(b) is limited to what is reasonably capable of being seen as necessary for the purposes of removal or to enable an application for permission to enter and remain in Australia to be made and considered DAMAGES — general damages — where the applicant seeks compensatory damages in relation to the period of his detention — whether the applicant is entitled to more than nominal damages — whether the applicant would have been lawfully detained as an unlawful non-citizen in any event DAMAGES — exemplary damages — whether the applicant is entitled to exemplary damages — where the period giving rise to the claim for exemplary damages was short — whether the respondent intentionally or recklessly acted in disregard of the applicant's rights DAMAGES — vindicatory damages — whether the applicant is entitled to vindicatory damages — where the applicant contends that he should receive an award of damages to reflect the vindication of his right not to be imprisoned unlawfully — whether vindicatory damages are part of compensatory damages