Zheng v Commonwealth of Australia

1. [1]

   HIS HONOUR: Xu Zheng is a citizen of the People’s Republic of China. She arrived at Sydney’s Kingsford Smith Airport on 4 March 2014 on a temporary tourist visa. After being interviewed by Border Protection officials, Ms Zheng’s visa was cancelled under s 116(1)(g) of the Migration Act 1958 and she was detained as an unlawful non-citizen.

2. [2]

   The decision to cancel Ms Zheng’s visa was illegal. In proceedings in the Federal Court of Australia commenced by Ms Zheng against the Minister for Immigration and Border Protection seeking judicial review of the decision to cancel her visa, the following orders were made by consent on 4 July 2014:

   1. (1)

      A writ of certiorari shall issue removing the record of the visa cancellation decision, being the decision of the delegate dated 4 March 2014 to cancel the applicant’s subclass 600 visa, into the Court to be quashed.

   2. (2)

      The respondent is to pay the costs of the applicant, being $515 which was paid for the filing fee.

3. [3]

   Following the cancellation of her visa, Ms Zheng was detained, first at the Villawood Detention Centre and later in Darwin pending deportation to China on 2 August 2014. Before that occurred, Ms Zheng had been held in detention in Australia for a period of 151 days. She was subsequently granted a right of re-entry to Australia and currently resides with her partner Warren Oliver in Sydney.

4. [4]

   Ms Zheng commenced these proceedings by statement of claim filed on 8 August 2016. An amended statement of claim was filed on 3 February 2017. The Commonwealth now seeks orders by notice of motion filed in court on 19 June 2017 to strike out the whole, or part, of the amended statement of claim pursuant to UCPR 14.28. The Commonwealth relies upon the affidavit of Alice Bolt sworn 16 December 2016.

5. [5]

   Ms Zheng’s claim against the Commonwealth is effectively divided into two parts. The first is a claim in tort claiming damages for false imprisonment. The second is a claim in tort claiming damages for negligence.

False imprisonment

1. [6]

   Ms Zheng alleges that her visa was erroneously cancelled pursuant to s 116 of the Act and that her detention thereafter was unlawful. Apart from s 116, several other sections of the Act should be noted:

2. [7]

   The Commonwealth contends that even though the decision to cancel Ms Zheng’s visa was quashed on 4 July 2014, that did not affect the rights and obligations of the detaining officer under s 189. That approach is said to have been acknowledged by the Federal Court of Australia in Fernando v Commonwealth of Australia [2014] FCAFC 181 as follows:

3. [8]

   The Commonwealth therefore emphasised that the amended statement of claim proceeds upon the erroneous basis that the wrongful cancellation of a visa necessarily leads to unlawful imprisonment and an associated entitlement to damages.

4. [9]

   In the present context Ms Zheng has also alleged that after the Commonwealth conceded that her visa had been illegally cancelled, the Minister failed to issue her with a new visa. The Commonwealth submitted that no cause of action arose from that circumstance either, because there is no private right of action that arises from any such failure or refusal: Scott v Pedler (2003) 74 ALD 424 at [44], [45], [60], [65] and [67].

5. [10]

   In my opinion, Ms Zheng has no cause of action arising from the legality of otherwise of her detention. The authorities upon which the Commonwealth relies are clear. Moreover, it has never been part of Ms Zheng’s case that anyone committed the tort of misfeasance in public office.

Negligence

1. [11]

   Ms Zheng alleges that her treatment whilst in detention caused her loss and damage. She contends that this loss and damage was caused by a breach of the duty owed to her by the Commonwealth to take reasonable care for her health and safety. Although the precise scope and content of that duty may be in dispute, I do not understand the Commonwealth to contend that no duty of any kind exists.

2. [12]

   The Commonwealth rather contends that to the extent that the amended statement of claim purports to plead a cause of action in negligence, it fails to do so clearly or more particularly in accordance with the rules. The Commonwealth’s position is underscored by the fact that on 11 October 2016 Ms Bolt wrote to Ms Zheng in great detail seeking further and better particulars of her claim. That letter has remained unanswered and would, if replied to, presumably have better informed the Commonwealth of the claim it is required to meet.

3. [13]

   UCPR 15.5 provides as follows:

4. [14]

   The amended statement of claim conspicuously fails to conform to this rule. Even though it is possible, on a benign view of the pleading, to discern the framework of Ms Zheng’s complaints, the Commonwealth ought not to be left in the position of having to speculate about the manner in which she frames her cause of action.

Conclusion

1. [15]

   In my opinion, Ms Zheng has no cause of action against the Commonwealth for false imprisonment. The actions of the Commonwealth employees were authorised by the relevant provisions of the Act, even notwithstanding the later quashing of the decision to cancel Ms Zheng’s visa.

2. [16]

   I am, however, not satisfied that Ms Zheng has no possible cause of action based upon a breach of the Commonwealth’s duty to take reasonable care for her safety whilst in detention. The matter is not at present properly pleaded. Ms Zheng should have an opportunity to replead that part of the amended statement of claim.

Costs

1. [17]

   The Commonwealth seeks costs of the motion upon the basis that it has succeeded in disposing of a substantial part of the amended statement of claim. Ms Zheng opposes that order, although she did not articulate her opposition in any precise or persuasive way. I note for present purposes that Ms Zheng appears for herself without legal assistance. A referral for such assistance on a pro bono basis has not advanced Ms Zheng’s position.

2. [18]

   Doing the best I can it seems to me that these proceedings have the potential to occupy a great deal more of this Court’s time. It is likely, or at least possible, that further matters will emerge that will inform the question of where the burden of costs, as between Ms Zheng and the Commonwealth, should fall. I think the proper order for costs at this time should take account of that prospect.

Miscellaneous

1. [19]

   It is apparent from submissions made to me by Ms Zheng and by her partner Mr Oliver on her behalf that the events that give rise to these proceedings have been distressing and upsetting for Ms Zheng and her family. This is not in my estimation a case in which a minor slight or insult has led to a disproportionate or obsessive reaction to what occurred. It seems to me that at the centre of Ms Zheng’s concerns is the fact that a little more care and patience, not to say forbearance, in the circumstances at the airport on 4 March 2014 may well have, and on one view certainly would have, avoided this entire misunderstanding. I have no doubt that Ms Zheng’s limited English contributed significantly to what happened. She was evidently unable to communicate sufficiently with her interviewers to make it clear that she had a place to stay and that her visit was legitimate. So much is apparent from the final consent orders made in the Federal Court. It is a matter of substantial regret that Ms Zheng could not have been spared the terrible ordeal of 151 days in detention and deportation, and the subsequent and ongoing unpleasant vicissitudes of litigation, when a little more patience and care might well have avoided everything that went wrong in her case.

Orders

1. [20]

   I make the following orders:

   1. (1)

      Strike out paragraphs 7 to 13 inclusive of the amended statement of claim filed on 3 February 2017.

   2. (2)

      Grant leave to the plaintiff within 28 days to replead so much of her cause of action against the defendant as is framed in negligence or breach of duty.

   3. (3)

      Order that the costs of the defendant’s motion dated 19 June 2017 should be the defendant’s costs in the proceedings.