Federal Court of Australia AKW22 v Commonwealth of Australia (No 2) [2023] FCA 332 File number: WAD 292 of 2021 Judgment of: COLVIN J Date of judgment: 14 April 2023 Catchwords: MIGRATION - application for damages for alleged false imprisonment - where applicant detained pursuant to s 189 of the Migration Act 1958 (Cth) - where applicant pleads fact of detention but makes no allegation about lawfulness of detention - where applicant maintains that the tort of false imprisonment requires the detainer to prove lawfulness of detention once fact of detention is pleaded by applicant - where respondent seeks orders striking out statement of claim and summary dismissal - statement of claim struck out - claim dismissed Legislation: Migration Act 1958 (Cth) s 189 Cases cited: AKW22 v Commonwealth of Australia [2022] FCA 869 Hemmati v Secretary of State for the Home Department [2019] UKSC 56 Lumba v Secretary of State for the Home Department [2011] UKSC 12 McHugh v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 223; (2020) 283 FCR 602 MZAPC v Minister for Immigration and Border Protection [2021] HCA 17 Plaintiff M47/2018 v Minister for Home Affairs [2019] HCA 17; (2019) 265 CLR 285 R v Deputy Governor of Parkhurst Prison, Ex parte Hague [1992] 1 AC 58 R v Governor of Brockhill Prison; Ex parte Evans (No 2) [2001] 2 AC 19 Ruddock v Taylor [2005] HCA 48; (2005) 222 CLR 612 Sami v Minister for Home Affairs [2022] FCA 1513 Secretary, Department of Health and Community Services v JWB and SMB (1992) 175 CLR 218 Trobridge v Hardy (1955) 94 CLR 147 Yoxon v Secretary to the Department of Justice [2015] VSC 124; (2015) 50 VR 5 Division: General Division Registry: Western Australia National Practice Area: Administrative and Constitutional Law and Human Rights Number of paragraphs: 34 Date of hearing: 20 March 2023 Counsel for the Applicant: Dr J Cameron (pro bono) Counsel for the Respondent: Mr P Knowles with Ms C Ernst Solicitor for the Respondent: Australian Government Solicitor ORDERS WAD 292 of 2021 BETWEEN: AKW22 Applicant AND: COMMONWEALTH OF AUSTRALIA Respondent order made by: COLVIN J DATE OF ORDER: 14 april 2023 THE COURT ORDERS THAT: 1. The statement of claim is struck out. 2. The applicant's claim is dismissed. 3. The applicant do pay the respondent's costs of the action. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. REASONS FOR JUDGMENT COLVIN J: 1 The applicant seeks damages for alleged false imprisonment. His statement of claim is brief. It says that he is a citizen of the Republic of India who is detained in immigration detention. It pleads that the Commonwealth as respondent may be sued and is bound by the provisions of the Migration Act 1958 (Cth). It alleges that the applicant has been detained by or on behalf of the Commonwealth for a total of 3,624 days and gives particulars of the places where the applicant has been detained. The applicant's position is that in an action for false imprisonment it is unnecessary for the applicant to plead that he has been unlawfully detained or the basis upon which his detention is claimed to be unlawful. All that he needs to plead is his detention and it is then for the detainer, in the present case the Commonwealth, to plead the lawful justification for the detention. 2 The Commonwealth has applied to summarily dismiss the applicant's claim, alternatively to strike out the applicant's pleading. The applicant says that he is unable to plead more. He says that he is not in a position to plead any probable cause or basis for the unlawfulness aspect of the claim of unlawful imprisonment. Therefore, if the pleading is insufficient then the appropriate order will be to strike out the claim. 3 The Commonwealth's application is supported by an affidavit which deposes to the cancellation of the applicant's visa in 2011 and that the applicant was subsequently unsuccessful in seeking merits review and judicial review of the visa cancellation. In short, it provides the briefest of evidence as to why the applicant is being detained. 4 The applicant accepts that the Commonwealth has a power to detain unlawful non-citizens under s 189 of the Migration Act. However, the applicant submits that as there is no evidence of judicial warrant to support the detention it is for the Commonwealth to establish the basis for the executive detention of the applicant. He says that false imprisonment is a tort of strict liability and that a person who proves that their imprisonment was caused by the detainer has a prima facie case and it is for the detainer to prove lawful justification for the detention. 5 A separate claim made by the applicant in the present proceedings for an order in the nature of habeas corpus has been dismissed: AKW22 v Commonwealth of Australia [2022] FCA 869. It was dismissed on the basis that in order to advance such a claim there must be an issue with the current detention of the applicant and no such issue had been demonstrated. Although every detention except that ordered by a judge is prima facie unlawful, in order to bring a habeas corpus claim there must be some demonstrated basis to claim that detention by the executive was unlawful. The extent of what is required may have regard to the extent to which knowledge of relevant matters is in the hands of the detainer, but there must be some basis demonstrated by the applicant. 6 The applicant says that the same approach does not apply to the tort of false imprisonment and that the plea in the statement of claim is sufficient because it is for the Commonwealth to show that the imprisonment of the applicant is lawful. 7 A submission was also advanced to the effect that there could not be an obligation on the applicant to plead more where the relevant facts are known to the Commonwealth relying upon the following statement by Allsop CJ in McHugh v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 223; (2020) 283 FCR 602 at [60] (after referring to the practical requirement for demonstrating reasonable justification or probable cause on the part of an applicant): … This can be seen by the way Kiefel CJ, Keane, Nettle and Edelman JJ put the matter in Plaintiff M47/2018 v Minister for Home Affairs [2019] HCA 17; 265 CLR 285 at [39] (where Yoxon was approved), as the plaintiff carrying 'at least an evidential burden of establishing that there is a reason to suppose that his detention has ceased to be lawful.' It can also be seen by the way the Full Court (Black CJ, Sundberg and Weinberg JJ) expressed the matter in Minister for Immigration & Multicultural & Indigenous Affairs v Al Masri [2003] FCAFC 70; 126 FCR 54 at 97 [176]: '… it is for the applicant to adduce evidence that puts in issue the legality of detention, and then the burden shifts to the respondent to show that detention is lawful, and may be discharged on the balance of probabilities.' The unsatisfactory evidence of the applicants in R v Governor of Brixton Prison; Ex parte Ahsan [1969] 2 QB 222 at 229-30 (noted in Yoxon at [39]) nevertheless raised the question of the lawfulness of the detention. Another way of expressing the question is whether the party seeking relief has shown a case fit to be considered by the court: Ex parte Khawaja [1984] AC at 111 (also cited in Yoxon at [39]). The necessity not to define precisely or overly finely in the abstract what has to be proved by the applicant can be appreciated if one recognises that in respect of some detentions (such as in Al Masri which concerned the possible exhaustion of the Constitutional purpose of the power to detain or, as here, where the detention is based on a mental state of the detainer required to be reasonably founded) the incidents or aspects of the lawfulness of the detention are within the knowledge and power of proof of the detainer: cf Blatch v Archer [1774] EngR 2; (1774) 1 Cowp 63 at 65; [1774] EngR 2; 98 ER 969 at 970 to the effect that evidence is to be weighed according to the proof which it was in the power of one side to produce and the other to contradict. The references to Yoxon are to Yoxon v Secretary to the Department of Justice [2015] VSC 124; (2015) 50 VR 5. 8 However, it can be seen that the Chief Justice was not suggesting that there was no evidentiary burden on the party seeking habeas corpus relief but rather that the precise manner in which the burden may be discharged may need to have regard to the extent to which information was in the hands of the detainer. Here the applicant maintains that there is no burden to plead anything. 9 It is claimed that the authorities concerning what is required to advance a habeas corpus claim do not apply. 10 I will deal with the authorities relied upon by the applicant. 11 In Trobridge v Hardy (1955) 94 CLR 147, the Court was concerned with a claim for trespass to the person and false imprisonment brought by a taxi driver who was alleged to have refused to provide his name and address to a police officer who arrested him. As to the pleading, Fullagar J said at 153: … It was unnecessary for [the plaintiff] to allege in his statement of claim, as in fact he did, that the defendant was 'acting in his office as a member of the police force'. The mere interference with the plaintiff's person and liberty constituted prima facie a grave infringement of the most elementary and important of all common law rights. It was for the defendant to justify, if he could, by reference to his office or otherwise. Actually one of the plaintiff's main contentions both at the trial and before this Court was that the defendant was not really acting in the execution of his office. Nor was it necessary to allege in the first place either absence of reasonable and probable cause or malice. With regard to the defence, it is to be noted that it does not allege either that there was in fact a refusal or neglect to give name and address or even that the defendant believed (whether with or without reasonable grounds) that there had been such a refusal or neglect. Nor does it, as it might have done under the statute on which this case ultimately turns, plead the general issue, which would have left everything open. It does, however, allege facts which, if proved, would bring the case within that statute and require proof by the plaintiff of malice. 12 Notwithstanding the above observations, the case did not turn on what the plaintiff was required to allege in order to bring a claim of false imprisonment. In particular, it is not suggested that the plaintiff sought to proceed by requiring the defendant police officer to demonstrate the lawfulness of the arrest and alleged no facts at all concerning the circumstances of his arrest. The statements by Fullagar J concerned whether it was necessary to make a particular allegation. The precise terms in which the plaintiff otherwise alleged that there had been interference with his person and liberty are not addressed. 13 In a separate judgment, Taylor J described the statement claim in the following terms at 170: The appellant's statement of claim alleged that the respondent, acting in his office as a member of the police force, but acting illegally, assaulted the appellant and maliciously and without reasonable or probable cause took him into custody on a false charge then made by him. … 14 Therefore, it appears that there were affirmative allegations made by the plaintiff in his statement of claim that would discharge an onus if there be one. Further, in MZAPC v Minister for Immigration and Border Protection [2021] HCA 17, the reasoning of Fullagar J was cited by Gordon and Steward JJ for the proposition that 'in an application for habeas corpus, provided that the detainee has established probable cause or a case fit to be considered, the person directing detention must prove the lawfulness of the detention': at [109](2). 15 In the above circumstances, Trobridge v Hardy does not assist in the resolution of the present application. 16 In Ruddock v Taylor [2005] HCA 48; (2005) 222 CLR 612, Kirby J said at [140]-[142]: Throughout the common law world, the conclusion consistently reached by courts addressing this question is that, in the absence of statutory provisions that clearly afford an immunity or defence to the administrator, the result must favour the individual whose rights have been violated. Wrongful imprisonment is a tort of strict liability. Lack of fault, in the sense of absence of bad faith, is irrelevant to the existence of the wrong. This is because the focus of this civil wrong is on the vindication of liberty and reparation to the victim, rather than upon the presence or absence of moral wrongdoing on the part of the defendant. A plaintiff who proves that his or her imprisonment was caused by the defendant therefore has a prima facie case. At common law it is the defendant who must then show lawful justification for his or her actions. The heavy burden placed on the defendant, at least in contrast to some other torts, is explicable in two senses. First, the onus on the defendant to establish a lawful justification is mitigated to some extent by the fact that a plaintiff must prove that the defendant was a direct cause of the injury, as well as prove the existence of the requisite intent. Secondly, as discussed above, the principal function of the tort is to provide a remedy for 'injury to liberty'. It is not, as such, to signify fault on the part of the defendant. Damages are awarded to vindicate personal liberty, rather than as compensation for loss per se. In light of these principles, it is understandable why, if the respondent can show that the Ministers caused his imprisonment on each occasion, each Minister is obliged to point to a clear lawful justification for his or her actions in order to escape liability. It is also understandable why any asserted lawful justification must be strictly scrutinised by this Court. As explained by the House of Lords: 'The defence of justification must be based upon a rigorous application of the principle that the liberty of the subject can be interfered with only upon grounds which a court will uphold as lawful.' (footnotes omitted) 17 The concluding quotation in the above passage is from R v Governor of Brockhill Prison; Ex parte Evans (No 2) [2001] 2 AC 19. The issue in that case was whether it was a defence to a claim of false imprisonment that the governor of the prison had complied with the law as the court then said it was (that is, at the time of detention) even though that view had been found subsequently to be incorrect. In short, the imprisonment had been determined not to be lawful, but a defence of justification was advanced on the basis that the detention had been based upon a considered understanding of the law. It was a defence that was expressed in various ways, including that the governor had acted with reasonable care and in good faith in undertaking the calculation of the period of detention. It was held that if detention could not be lawfully justified then it was no defence for the detainer to demonstrate a reasonable belief that the detention could be justified, or that the detainer acted in good faith. 18 However, the issue whether the defence of justification extended to include a case of such a kind must be distinguished from the question of the lawfulness of the detention. Unlawfulness of the detention (often termed lawful justification) was a separate matter. It was one of the elements that needed to be proven in order to establish the tort of false imprisonment. As to lawfulness of detention, the majority in Ruddock v Taylor found that the detention of Mr Taylor had been demonstrated by the evidence for the Ministers whose actions were under challenge to be lawful: at [49]. The finding to that effect resulted in the appeal by the Ministers being allowed. 19 Kirby J adopted a different approach. It was one which required the Ministers to 'show lawful justification for their actions, either under the common law or by statute': at [145]. Continuing the language from Brockhill, his Honour characterised the question in terms of whether the Ministers had made out 'such a defence'. In analysing whether that was so, his Honour referred to authorities that were concerned with justification in circumstances where a detention had been demonstrated to be unlawful, particularly cases where there was some form of statutory immunity or protection from suit. His Honour characterised the question in terms of immunity from a claim of wrongful imprisonment: at [153]-[155]. In short, the analysis by his Honour was as to whether there was a 'defence' of justification afforded by the statute, not in terms of whether lawfulness of detention was a defence. 20 Further the case was not concerned with onus of proof as to the lawfulness of detention. As has been noted, the majority found that lawfulness had been proved by the unchallenged evidence of the officers who had been responsible for effecting the detention of Mr Taylor. McHugh J, in dissent, reached the view that the evidence of the officers did not prove that they held the mental state that was a condition precedent to the detaining of a person: at [100]. 21 Properly understood, the statements by Kirby J relied upon by the applicant do not provide support for the applicant's position which is to the effect that an action for false imprisonment can be brought by a person who has no basis at all for a view that the detention was not lawfully justified. The case is not concerned with that question. In any event, Kirby J was in dissent. To the extent that his Honour's reasons cast lawful justification as a defence, they are views that are not consistent with the approach of the majority and McHugh J which was to approach the issue of lawfulness of detention as a matter of proof where the onus fell upon the detainer. 22 In Hemmati v Secretary of State for the Home Department [2019] UKSC 56, Lord Kitchen, with whom other members of the Supreme Court agreed, said at [81]: A person who is unlawfully detained in this jurisdiction has (a) a right to be released; and (b) a right to damages for the tort of false imprisonment. This tort has just two ingredients: the fact of imprisonment and the absence of lawful authority to justify it: R v Deputy Governor of Parkhurst Prison, Ex p Hague [1992] 1 AC 58, 162C-D per Lord Bridge of Harwich. All that a claimant has to prove in order to establish false imprisonment is that he was directly and intentionally detained by the defendant, whereupon the burden shifts to the defendant to show that there was lawful justification for doing so: Lumba, para 65, per Lord Dyson. 23 In Lumba v Secretary of State for the Home Department [2011] UKSC 12, Lord Dyson was concerned with whether the existence of an unlawful policy as to the detention of a person vitiated a decision to detain even though a valid decision to detain may have been made under the relevant provision. At [63]-[65], his lordship said: The Court of Appeal were right to say at para 89 that the mere existence of an unlawful policy is not sufficient to establish that any particular exercise of a statutory discretion is unlawful. The decision to detain and/or continue detention will not be vitiated on the grounds of an unlawful policy unless the policy has been applied or at least taken into account by the decision maker. But this does not shed any light on the correctness of the causation test. Trespassory torts (such as false imprisonment) are actionable per se regardless of whether the victim suffers any harm. An action lies even if the victim does not know that he was imprisoned: see, for example, Murray v Ministry of Defence [1988] 1 WLR 692, 703A where Lord Griffiths refused to redefine the tort of false imprisonment so as to require knowledge of the confinement or harm because 'The law attaches supreme importance to the liberty of the individual and if he suffers a wrongful interference with that liberty it should remain actionable even without proof of special damage.' By contrast, an action on the case (of which a claim in negligence is the paradigm example) regards damage as the essence of the wrong. All this is elementary, but it needs to be articulated since it demonstrates that there is no place for a causation test here. All that a claimant has to prove in order to establish false imprisonment is that he was directly and intentionally imprisoned by the defendant, whereupon the burden shifts to the defendant to show that there was lawful justification for doing so. As Lord Bridge said in R v Deputy Governor of Parkhurst Prison, Ex p Hague [1992] 1 AC 58, 162C-D: 'The tort of false imprisonment has two ingredients: the fact of imprisonment and the absence of lawful authority to justify it.' 24 The above passage from Hemmati and the decisions on which it relies (Lumba and R v Deputy Governor of Parkhurst Prison, Ex parte Hague [1992] 1 AC 58) are not concerned with what must be alleged by an applicant bringing a claim based upon alleged false imprisonment. They are concerned with what must be proven ultimately in order to make out the claim. These are different things. The question at issue here is whether an applicant can cause a respondent to answer a claim where the applicant articulates no basis at all to support the element of the claim that concerns the absence of lawful authority to justify the detention. 25 Finally, it was contended for the applicant that the habeas corpus cases were different in character. So much may be accepted. They are justified by the prerogative and, in Australia, have constitutional character. False imprisonment, on the other hand, is an in personam claim in tort. Historically, the writ of habeas corpus was sought by means of an order nisi procedure in which some basis for the writ was required to be demonstrated and then a show cause hearing was held to determine whether the order should be made absolute. However, as the reasoning in McHugh demonstrates, even where such a claim is brought by application, there remains an initial burden on an applicant. I referred to the relevant passages from McHugh in AKW22 at [7]-[9]. See also Plaintiff M47/2018 v Minister for Home Affairs [2019] HCA 17; (2019) 265 CLR 285 at [39] (Kiefel CJ, Keane, Nettle and Edelman JJ). Therefore, the different procedural origins of habeas corpus claims are not the reason for the ongoing requirement upon an applicant to discharge an initial burden. 26 However, it is not necessary to reason by analogy to the habeas corpus cases. The tort of false imprisonment has two elements; detention and the absence of lawful justification for the detention. In order to bring a claim of false imprisonment an applicant must have a basis for holding a view that both elements are met. Without such a basis a claim could not be properly pleaded. A party who suspects that there is a basis for a claim may avail themselves of the procedures for pre-action discovery. However, such a party is not able to require a respondent to answer a claim in circumstances where the party provides no reason at all to hold the view that there was no legal justification for the detention. 27 In any case where the onus falls upon a respondent to establish that an element of a cause of action is not proven, an applicant must still have some reason to make the claim. Further, as a matter of pleading practice, that reason must be pleaded. To insist upon such a plea is not to require the applicant to prove that in respect of which the respondent has the onus. Nor is it to require an anticipatory plea. It is to require some foundation for the bringing of the case. Even though the onus to prove that there was lawful authority falls upon the detaining party, it is not the case that a plea of lawful authority is to be viewed as a defence. The absence of lawful authority remains an element of the claim of unlawful imprisonment. It is just that the onus of proof falls upon the respondent. In that particular respect there is no difference between a habeas corpus claim and a claim for damages for false imprisonment. 28 These requirements are to be differentiated from instances where there is an available defence which the respondent must plead and prove if it is to be availed of by the respondent. In such cases, it is not simply the case that the onus of proof as to an element of the claim falls on the respondent. Rather, it is for the respondent to decide whether to raise the defence and then, if the defence is raised, for the respondent to prove the defence. The distinction was explained by McHugh J in the context of pleading and proving consent to physical contact by the plaintiff in the context of a claim to damages based upon an allegation that the tort of battery has been committed: see Secretary, Department of Health and Community Services v JWB and SMB (1992) 175 CLR 218 at [5] where his Honour said: Notwithstanding the English view, I think that the onus is on the defendant to prove consent. Consent is a claim of 'leave and licence'. Such a claim must be pleaded and proved by the defendant in an action for trespass to land. It must be pleaded in a defamation action when the defendant claims that the plaintiff consented to the publication. The Common Law Procedure Act 1852 (15 & 16 Viet. c. 76) (10) also required any 'defence' of leave and licence to be pleaded and proved. However, those who contend that the plaintiff must negative consent in an action for trespass to the person deny that consent is a matter of leave and licence. They contend that lack of consent is an essential element of the action for trespass to a person. I do not accept that this is so. The essential element of the tort is an intentional or reckless, direct act of the defendant which makes or has the effect of causing contact with the body of the plaintiff. Consent may make the act lawful, but, if there is no evidence on the issue, the tort is made out. The contrary view is inconsistent with a person's right of bodily integrity. Other persons do not have the right to interfere with an individual's body unless he or she proves lack of consent to the interference. 29 The tort of battery is established by an intentional or reckless, direct act of the defendant which makes or has the effect of causing contact with the body of the plaintiff. Lack of consent is not an element of the tort. Therefore, if consent is not pleaded as a defence then the tort is made out because the defence has not been raised. If it is pleaded and there is no evidence of consent then the tort is made out because the defence has not been proved. The difference in the case of the tort of imprisonment is that the unlawfulness of the detention is an element of the tort that must be established. The onus of proof as to that element is on the detaining party. If that onus is not discharged then the element is proven. However, there can be no claim unless there is some basis to believe that the detention has been unlawful. Put another way, a person claiming that there has been unlawful imprisonment is claiming that there was no lawful authority to detain. A person claiming that there has been battery is not claiming that there was no consent. 30 The difference has consequences for pleading and proof. An applicant for relief on the basis of an allegation that the tort of false imprisonment has been committed must both plead some basis for the detention having been unlawful and discharge an initial onus to lead some evidence to put the lawfulness of detention in issue. Having discharged that evidentiary onus, the burden of proof as to lawfulness falls on the respondent to the claim. 31 In some cases, there may be a sufficient foundation to bring a claim for false imprisonment because the person has been detained and simply has no idea why because the detainer has provided no indication at all as to what the lawful justification may be (or because the detained person has made an inquiry as to the basis for the detention and has received no intelligible explanation). These are matters that could be pleaded by an applicant in an appropriate case. The present case is not of that kind because the applicant knows the provisions of the Migration Act concerned with the detention of unlawful non-citizens that are those upon which the Commonwealth relies. 32 The difficulty for the applicant in the present case is that it was not suggested that he knows nothing of the circumstances of his detention. He is aware that his current detention is sought to be justified under particular provisions of the Migration Act. On the evidence, there is a period when he was detained whilst he sought merits review and judicial review of his visa cancellation. It is not suggested that a person could not be lawfully detained at all in his circumstances. He makes no claim to be a citizen. He makes no claim that he has requested an explanation as to the basis for his detention and has been refused an explanation. He raises no basis by reference to the relevant provisions of the Migration Act as to why he says his detention may not have been in accordance with those provisions. He does not suggest there is any reason to suppose that his detention has become unlawful. He makes no claim that he cannot be removed from Australia and that he is being detained indefinitely: c.f. Sami v Minister for Home Affairs [2022] FCA 1513. He does not say that he has some basis for a view that those detaining him do not hold the belief that is necessary for his lawful detention. 33 It is not suggested that the length of the applicant's detention when measured against the nature and extent of the authority conferred by the provisions of the Migration Act to detain a person who is an unlawful non-citizen is itself a basis to infer that his detention has been unlawful. 34 In those circumstances, the applicant has not discharged the obligation to plead some basis for the claim as to the element of unlawfulness. It follows that the application by the Commonwealth must be acceded to, the statement of claim must be struck out and the claim must be dismissed. It was accepted that costs would follow the event. There should be an order for costs. I certify that the preceding thirty-four (34) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Colvin. Associate: Dated: 14 April 2023