SBEG v Cth

(2012) 208 FCR 235; [2012] FCAFC 189

Full Court of the Federal Court20 December 2012

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Interrogate

Catchwords

1. Tort
2. › Negligence
3. › Duty of care
4. › Scope of duty owed by Commonwealth to immigration detainee
5. › Whether duty extends to devising alternative form of detention under statutory power
6. › Whether breach established by keeping detainee in 'environment of incarceration'
7. › Migration Act 1958 (Cth), ss 5(1), 189, 196(3), 197AB
1. Immigration
2. › Immigration detention
3. › Definition of 'immigration detention'
4. › Place approved by Minister under s 5(1)(b)(v)
5. › Whether power under s 5(1)(b)(v) could achieve form of detention equivalent to residence determination under s 197AB
6. › Migration Act 1958 (Cth), ss 5(1)(b)(v), 197AB, 197AC
1. Practice and Procedure
2. › Injunctions
3. › Permanent injunction to restrain tort of negligence
4. › Whether court should grant injunction requiring ongoing supervision of detention arrangements
5. › Separation of powers considerations

Quick Take

Immigration detainees challenging conditions of detention through negligence claims must establish a specific, feasible alternative form of detention within the statutory definition of 'immigration detention' that would materially improve the detainee's health, rather than seeking arrangements that effectively replicate a residence determination under s 197AB.