Group member update

22 June 2020

UNLAWFUL DETENTION OF PEOPLE SEEKING ASYLUM CLASS ACTION
DBE17 v The Commonwealth of Australia (VID1392 of 2019)

A class action has been commenced in the Federal Court of Australia by DBE17 (by his Litigation Guardian Marie Theresa Arthur) against the Commonwealth of Australia.  The action arises out of an allegation that certain people seeking asylum were unlawfully detained in Australian immigration detention centres between 27 August 2011 and 25 February 2020.

A class action is an action that is brought by one person (“Applicant”) on his or her own behalf and on behalf of a class of people (“class members”) against another person (“Respondent”) where the Applicant and the class members have similar claims against the Respondent. 

Group Members are not individually responsible for the legal costs associated with bringing the lead proceedings in the class action. The costs incurred in the lead proceedings by the Lead Applicant and costs incurred for the assessment of any unique aspects of a Group Member’s claim will be chargeable as described under the ‘Costs and Fees’ section of this class action’s webpage.

This class action, the Unlawful Detention of People Seeking Asylum class action (DBE17 v Commonwealth of Australia), is brought by the Applicant, known as DBE17 (by his Litigation Guardian Marie Theresa Arthur), on his own behalf and on behalf of all persons who are “class members” as defined in the proceeding. 

The Applicant alleges in the amended statement of claim in Federal Court proceeding number VID1392 of 2019 that certain individuals who were detained for more than two working days in any part or parts of Australia pursuant to s 189 of the Migration Act 1958 (Cth) between 27 August 2011 and 25 February 2020 were detained unlawfully.  

This class action argues that people seeking asylum may only be legally detained for the amount of time it reasonably takes the Commonwealth to process their visa applications and that detention beyond this time is unlawful.

Further, the class action alleges that the removal purpose for each group member who arrived in Australia after 12 August 2012 and who was designated to be sent to a regional processing country was unlawful.

The respondent to the class action is the Commonwealth of Australia. The respondent does not admit the allegations and is defending the class action. 

You are a class member if you:

  • were detained for more than two working days in any part or parts of Australia pursuant to s 189 of the Migration Act 1958 (Cth) between 27 August 2011 and 25 February 2020; and
  • were not detained because you held a visa under the Migration Act that was cancelled or purportedly cancelled under the Migration Act; and
  • did not, at any time after arriving in Australia, return voluntarily to your country of origin or former habitual residence; and
  • were not at any time since 27 August 2011 removed from Australia to your country of origin or former habitual residence without later re-entering Australia; and
  • were not detained after being a lawful non-citizen (as defined in s 13 of the Migration Act) who remained outside detention without a valid visa, unless you were, at any later time, granted a visa described in s 35A of the Migration Act; and
  • did not receive, at any time, an adverse security assessment under the Australian Security Intelligence Organisation Act 1979 (Cth).

If you are unsure whether or not you are a class member, you should contact Maurice Blackburn Lawyers on 1800 930 956 or email: asylumseekerclassaction@mauriceblackburn.com.au or seek your own legal advice without delay. 

The Commonwealth has filed an application with the Federal Court seeking to have the matter dismissed. This application is listed to be heard in late June 2020, and once judgment is delivered we will send group members a further update.

Class members can cease to be part of this class action by choosing to opt out. If you opt out you will not be bound by or entitled to share in the benefit of any order, judgment or settlement in the class action, but you will be at liberty to bring your own claim against the respondent, provided that you issue Court proceedings within the time limit applicable to your claim. If you wish to bring your own claim against the respondent, you should seek your own legal advice about your claim and the applicable time limit prior to opting out.

If you wish to opt out, you should contact Maurice Blackburn Lawyers on 1800 930 956 or email asylumseekerclassaction@mauriceblackburn.com.au.

You will also have a formal opportunity to opt out of the class action at a later date. The Federal Court will make orders regarding this formal opt out process in due course.