News: Special leave to appeal revoked in Fernando v Commonwealth

Fernando v Commonwealth purportedly raised the issue of what measure of damages were appropriate for a case of wrongful immigration detention where the plaintiff could have been lawfully detained in any event. However, the High Court has now revoked special leave on the basis that the appellant’s argument did not adequately raise that question.

The appellant, Fernando, a permanent resident with Sri Lankan citizenship, had been convicted three counts of sexual penetration without consent, for which he was gaoled for eight years in 1998. In 2001, before Fernando’s release, his visa was cancelled by the Minister for Immigration. This decision was set aside by the Federal Court in September 2003 on the grounds of jurisdictional error. Fernando was released from prison in October 2003, but was immediately taken into immigration detention pending a new decision by the Minister. He was given two weeks to respond to the Minister’s intention to cancel his visa. However, in light of Allsop J’s decision in Sales v Minister for Immigration and Multicultural Affairs [2006] FCA 1807, which stated that two weeks was procedurally unfair, the Department commenced a review of cases. Fernando was released, and the Department consented to orders quashing the cancellation decision.

Fernando had been held in immigration detention for 1203 days, and sought damages, for, inter alia, the tort of false imprisonment. The difficulty Fernando faced in maintaining his claim was that he could in fact have been lawfully detained in any event pursuant to s 189(1) of the Migration Act 1958 (Cth). The trial judge awarded Fernando $1 in nominal damages, but $25,000 in exemplary damages. The award of exemplary damages was overturned by the Full Federal Court.

The High Court has now revoked Fernando’s grant of special leave. In the transcript, French CJ said:

The argument presented to the Court on behalf of the appellant does not, in our opinion, adequately raise for consideration the question of principle which underpinned the grant of special leave. That question was whether a person wrongly detained, who would in any event have been lawfully detained, is entitled to compensatory damages. The premise that the appellant was liable to mandatory detention under section 189 is not open to question in this appeal. In the circumstances in which the important question of principle has not adequately been exposed by the submissions made on behalf of the appellant, the grant of special leave should be revoked.

The orders of the Court are: the grant of special leave is revoked; the application for special leave is dismissed and the appellant is to pay the costs of the application and of this hearing.

This is not the first time special leave has been revoked. The High Court has made the same decision in two matters in the last two years: The Go Star v Daebo International Shipping Co Ltd (on the basis that it was not a suitable vehicle) and MIMAC v SZRNY (on the basis that the Migration Act had been modified and the case was no longer in the public interest).

Speaking as a remedies lawyer with a keen interest in aggravated and exemplary damages, I can’t help feeling a little disappointed that the appellant’s arguments in this case did not raise those very interesting issues of principle mentioned by the Court.

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About Katy Barnett

Katy Barnett is a Professor at Melbourne Law School. She has published extensively in the areas of private law and remedies, and is a co-author of ‘Remedies in Australian Private Law’ with Dr Sirko Harder. In 2016 she received the Barbara Falk Award for excellence in teaching.