Fernando v Commonwealth

The High Court revoked special leave in an appeal against a decision of the Full Federal Court on nominal damages for wrongful detention. Fernando, a Sri Lankan national with a permanent residency visa, was convicted of three counts of sexual penetration without consent and sentenced to eight years imprisonment in 1998. In 2001, the Minister cancelled Fernando’s visa, a decision which was set aside by the Federal Court in September 2003 on grounds of jurisdictional error. When Fernando was released from prison in October 2003 he was immediately taken into immigration detention pending a new decision by the Minister and afforded Fernando approximately two weeks to respond to the Minister’s intention to cancel his visa. Following the Federal Court’s decision in Sales v Minister for Immigration and Multicultural Affairs [2006] FCA 1807, in which Allsop J held that a two week period did not meet the requirements of procedural fairness, the Department commenced a review of similar cases, identified Fernando’s case as being similar, released him, and consented to orders quashing the cancellation decision. Fernando had been held in immigration detention for 1203 days, and now seeks damages, relying on, among other causes of action, the tort of false imprisonment. The Full Court agreed with the trial judge’s decision to award him $1 in nominal damages on the basis that Fernando would have been detained without the error of procedural fairness. The Full Court reversed the trial judge’s decision to award Fernando $25,000 in exemplary damages, holding that the two week period was standard practice and there was no evidence of recklessness by the Minister in applying it to Fernando’s case.

On 5 November, the Full Court revoked special leave on the basis that the argument presented did not adequately raise the question of principle that underlay the initial grant of special leave, namely ‘whether a person wrongly detained, who would in any event have been lawfully detained, is entitled to compensatory damages’.

Result Special leave revoked
High Court Documents Fernando
Full Court Hearing [2015] HCATrans 286 5 November 2015
Special Leave Hearing [2015] HCATrans 190 14 August 2015
Appeal from FCAFC [2014] FCAFC 181 22 December 2014
Trial Judgment, FCA
[2013] FCA 901 6 September 2013
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About Martin Clark

Martin Clark is a PhD Candidate and Judge Dame Rosalyn Higgins Scholar at the London School of Economics and Political Science and Research Fellow at Melbourne Law School. He holds honours degrees in law, history and philosophy from the University of Melbourne, and an MPhil in Law from MLS. While at MLS, he worked as a researcher for several senior faculty members, was a 2012 Editor of the Melbourne Journal of International Law, tutor at MLS and various colleges, a Jessie Legatt Scholar, and attended the Center for Transnational Legal Studies Program.