Guo v Commonwealth of Australia [2017] FCA 1355
ORDERS
Applicant | ||
AND: | Respondent | |
DATE OF ORDER: | 24 November 2017 |
THE COURT ORDERS THAT:
1. The parties notify the Court within seven (7) days whether they wish to make further submissions about the Civil Liability Act 2002 (NSW) and:
(a) if not, file and serve proposed orders reflecting these reasons for judgment including as to costs; and
(b) if so, file and serve proposed orders for the future conduct of the matter.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
JAGOT J:
1. The issues
1 The applicant, Mr Guo, sues the Commonwealth of Australia for damages for false imprisonment. Mr Guo’s principal claims relate to the periods from 29 February 2012 to 26 September 2014 and from 3 December 2014 to 6 March 2015 during which he was held in immigration detention when he in fact held a visa in the form of a temporary entry permit.
2 The Commonwealth admits that it falsely detained Mr Guo during each of the periods. In short, the Commonwealth wrongly believed that Mr Guo’s temporary entry permit had ceased so that he was an unlawful non-citizen required to be taken into and held in immigration detention. For the purpose of this proceeding the Commonwealth admits that Mr Guo’s temporary entry permit subsisted at all times before 6 March 2015 so that he was not an unlawful non-citizen at or during the times he was detained. The Commonwealth contends, however, that it is not liable for the tort of false imprisonment because it has proved lawful justification for the actions of its officers. The Commonwealth contends, in the alternative, that if is liable for the tort of false imprisonment, Mr Guo has not suffered any loss or damage as a result and thus should be awarded no more than nominal damages.
3 I have decided that Mr Guo was falsely imprisoned by the Commonwealth but that he is entitled to only nominal damages apart from in respect of one period (the evening of 5 March 2015 to the afternoon of 6 March 2015) where exemplary damages in the sum of $35,000 should be ordered.
4 My reasons follow.
2. Facts
5 Most of the primary facts are uncontentious.
6 Mr Guo was born in China in 1957. He first came to Australia in 1988 on a student visa. In June 1991 Mr Guo applied for and was thereafter granted a Class 437 (Temporary) entry permit. The grant was made on humanitarian grounds associated with the protests in Tiananmen Square in Beijing in 1989.
7 It is common ground that, as identified in the submissions for Mr Guo:
11. On or about 30 June 1994, Mr Guo made a valid application for a Class 815 (PRC (permanent) entry permit) (permanent entry permit). At the time, the Migration (1993) Regulations 1992 (Cth) (1993 Regulations) were in force. Clause 437.711(2) of Sch 3 to the 1993 Regulations operated so that Mr Guo’s application for a permanent entry permit was taken also to be an application for a further temporary entry permit.
12. On or about 1 July 1994, the then Minister for Immigration and Ethnic Affairs (Minister) granted a further temporary entry permit to Mr Guo. By reason of cl 437.52(a) of Sch 3 to the 1993 Regulations, that permit was valid and had effect from the time that it was granted until the following events took place:
a) a decision was made on Mr Guo’s application for a permanent entry permit; and
b) Mr Guo was notified of that decision in accordance with reg 2.8 of the 1993 Regulations.
Section 66 of the Act identified what such a notice was required to contain.
13. On 1 September 1994, by operation of reg 4(2) the Migration Reform (Transitional Provisions) Regulation 1994 (Cth) (Transitional Regulations), Mr Guo’s temporary entry permit continued in effect as a transitional (temporary) visa that permitted him to remain in Australia until the day on which his permit would have ceased to be in force. Regulation 23 operated to convert Mr Guo’s application for a permanent entry permit to a transitional (permanent) visa.
8 While in Australia, Mr Guo was charged with numerous crimes and convicted of some:
(1) In 1991 he was fined $150 for an offence “found in gaming house”.
(2) In 1994 he was charged with conspiracy to supply a commercial quantity of a prohibited drug, but this charge was withdrawn.
(3) In 1994 he was fined $500 for an offence of possessing a falsified passport of a foreign government.
(4) In 2001 he was charged with serious indictable property offences one of which proceeded to a conviction and resulted in a sentence of imprisonment of 25 weeks commencing in 2003.
(5) In 2004 he was charged with assault, destroying or damaging property and three counts of possessing a prohibited drug, but all of these charges were withdrawn.
(6) In 2008 he was charged with possessing a prohibited drug, but this charge was withdrawn.
(7) In 2009 he was convicted of having suspected stolen goods in his personal custody but this conviction was subsequently quashed.
(8) In early 2012 he was charged with possession and supply of a prohibited drug. He was convicted of possession with no other penalty imposed and the charge of supply was withdrawn.
9 In October 1996 the Minister’s delegate decided that Mr Guo should not be granted a transitional (permanent) visa as he did not satisfy the test of good character in s 501 of the Migration Act 1958 (Cth). This decision was based on the offences in 1991 and 1994 for which Mr Guo was fined and information from police to the effect that Mr Guo had associations with persons and organisations involved in criminal activities and was implicated in the importation of drugs into Australia (allegations which Mr Guo denied).
10 Mr Guo was notified of this decision on 25 October 1996. It is common ground in this proceeding that this notice was invalid or ineffective or did not constitute a notice within the meaning of the applicable statutory provisions. To explain this it is necessary to delve into the provisions of the Act as they stood at the relevant time. Fortunately, for the purpose of this proceeding, the parties agree about the provisions and their operation.
11 By item 437.52(a) of Schedule 3 to the Migration (1993) Regulations 1992 (Cth) (the 1993 Regulations) a temporary entry permit, as held by Mr Guo, remained in force if the holder was an applicant for a Class 815 PRC (Permanent) entry permit), as Mr Guo was, “until a decision is made on that application, and the holder has been notified in accordance with regulation 2.8”.
12 As at 25 October 1996 regulation 2.8 of the 1993 Regulations specified the way in which notice had to be given. Further, s 66(2)(d) of the Act, as it then was, provided that:
Notification of a decision to refuse an application for a visa must:
…
(d) if the applicant has a right to have the decision reviewed under Part 5 or 7 or section 500 - state:
(i) that the decision can be reviewed; and
(ii) the time in which the application for review may be made; and
(iii) who can apply for the review; and
(iv) where the application for review can be made.
13 In Chan Ta Srey v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1292; (2003) 134 FCR 308 it was held that a notice for the purpose of regulation 2.8 is a notice under and in conformity with s 66 of the Act (at [43] and [53]).
14 The notice of 25 October 1996 said that Mr Guo had “35 days after the date of this letter” to make an application for merits review of the decision. This was wrong. Under ss 29(1)(d) and 29(2)(a) of the Administrative Appeals Tribunal Act 1975 (Cth) (as then in force), Mr Guo had 28 days from the date of being provided with a copy of the reasons for decision in which to lodge an application.
15 On this basis the Commonwealth conceded for the purpose of this proceeding that the notice of 25 October 1996:
did not comply with s 66(2)(d) of the Act, and therefore did not constitute notice in accordance with regulation 2.8 of the 1993 Regulations, and therefore did not engage the operation of Item 437.52(a) of Schedule 3 of the 1993 Regulations, with the ultimate effect that the Applicant’s Class 437 (Temporary) entry permit did not cease to operate upon receipt of the notice of 25 October 1996.
16 On 22 November 1996, within the 28 day period which in fact applied, Mr Guo applied to the Administrative Appeals Tribunal to review the decision to refuse his application for a permanent visa. The Commonwealth also made this concession for the purpose of this proceeding:
the fact [Mr Guo] actually commenced valid proceedings for merits review of the Minister’s visa refusal decisions in the Administrative Appeals Tribunal in 1996 was not effective to “cure” the conceded non-compliance with s 66(2)(d) of the Act.
17 On 3 November 1997 the Tribunal dismissed Mr Guo’s application for non-appearance.
18 On 21 January 2003 Mr Guo applied to the Tribunal to reinstate the application and sought an extension of time within which to make a second application for review. The Tribunal dismissed both applications on 9 July 2004 (Guo and Minister for Immigration and Multicultural and Indigenous Affairs [2004] AATA 729). Mr Guo’s application for judicial review of the Tribunal’s decisions was also subsequently dismissed on 10 December 2004 (Guo v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1585).
19 Mr Guo was taken into and held in immigration detention between about 19 December 2004 and 6 May 2005. Mr Guo made various applications for visas during and after this period, including applications for review of decisions. He was also released from immigration detention on the basis of a bridging visa while his various applications were considered and determined. However, on 1 July 2011 the bridging visa he held expired.
20 As noted above, in 2012 Mr Guo was charged with possession and supply of a prohibited drug. He had been arrested on or about 10 February 2012 in connection with this charge and detained by the NSW Police and was then taken to the Metropolitan Remand and Reception Centre (the MRRC) at the Silverwater Correctional Complex. The MRRC is also a place of immigration detention for the purposes of the Act.
21 Mr Guo’s detention came to the attention of officers of the Department of the Minister responsible for administering the Act (which has been known by various names over time). One officer, Vanessa Sebastian, sent a facsimile to the Burwood Local Court on 10 February 2012 requesting that Mr Guo be held as a person known or reasonably suspected to be an unlawful non-citizen. Another officer, Joanne Luu, sent a facsimile to the MRRC on 13 February 2012 requesting that he be held there on the same basis.
22 Mr Guo appeared before the Local Court on 29 February 2012, having been held on remand at the MRRC from the time of his transfer there. He was granted bail. However, he was not released on bail but was transferred back to the MRRC, I infer by reason of the facsimile Ms Luu had sent. Later on 29 February 2012 officers of the Department, including Ms Luu, attended at the MRRC, detained Mr Guo under the Act and transferred him to the Villawood Immigration Detention Centre on the alleged basis that Ms Luu, as a relevant officer, held a reasonable suspicion that Mr Guo was an unlawful non-citizen. Mr Guo was held at Villawood in immigration detention until 26 September 2014.
23 On 12 August 2014 Mr Guo applied to the High Court for a writ of habeas corpus to secure his release from immigration detention on the basis that he was a lawful non-citizen as referred to in s 13 of the Act and thus not liable to be detained because his transitional (temporary) visa (generally referred to as a temporary entry permit) remained in force. The High Court proceedings were resolved by consent on 26 September 2014, on a basis consistent with the Commonwealth’s concessions above. Mr Guo was thus released from immigration detention on 26 September 2014.
24 On 3 December 2014 Mr Guo was again notified of the decision to refuse his application for a Class 815 (PRC (permanent) entry permit). On that day officers of the Department, including Christopher Czerkies, accompanied by the NSW police, attended Mr Guo’s residence to give him this notice. Mr Czerkies then detained Mr Guo on the alleged basis that he reasonably suspected Mr Guo of being an unlawful non-citizen and Mr Guo was again transferred to Villawood where he remained and remains in immigration detention.
25 However, the Commonwealth also concedes for the purpose of this proceeding that the second notice of 3 December 2014 was itself invalid and/or ineffective under the Act and did not operate to terminate Mr Guo’s Class 437 (Temporary) entry permit. Specifically, as the Commonwealth acknowledged in its submissions:
13. The error in the purported notification of 3 December 2014 was that it stated that the time limit for seeking merits review was “nine (9) days after the day on which [the Applicant was] taken to be notified of the decision”. The specified 9-day time limit reflected the then requirements of s 500(6B) of the Act.
14. Section 500(6B) of the Act was introduced by item 21 of Schedule 1 to the Migration Legislation Amendment (Strengthening of Provisions Relating to Character and Conduct) Act 1998 (Cth) (the Amending Act) and came into operation on 1 June 1999.
15. The amendment to s 501 effected by item 23 of Schedule 1 of the Amending Act applied to visas and visa applications in existence prior to the commencement of the Amending Act: see item 28 of Schedule 1 of the Amending Act. The Minister concedes, however that, by reason of the operation of item 32(1) of Schedule 1 of the Amending Act, the amendments to s 500 (including the introduction of the 9-day time limit in s 500(6B)) did not apply in the Applicant’s case.
16. The amendment to s 66 introduced by item 4 of Schedule 1 of the Amending Act has the effect that s 66 no longer applies to the notification of decisions made under s 501. However, for the purpose of this proceeding, the Minister concedes that, in order to effectively bring the Class 437 (Temporary) entry permit to an end, the notice of 3 December 2014 was required by s 66(1)(d) of the Act to state that the time limit in which merits review could be sought was the time limit was that applicable at the time of the original decision in 1996.
26 As a result, on or about 6 March 2015, while being held in immigration detention at Villawood, Mr Guo was given a third notice notifying him of the decision to refuse to grant him a Class 815 (Permanent) entry permit. As put in the submissions for Mr Guo:
The third notification letter, unlike the first and second notification letters, complied with s 66 of the Act and reg 2.8 of the 1993 Regulations. As a consequence, Mr Guo’s transitional (temporary) visa ceased to be in effect on and from 6 March 2015.
27 Mr Guo continues to be held at Villawood.
3. Statutory provisions
28 Section 5(1) of the Act defines terms “unless the contrary intention appears”. Definitions included the following (at all material times):
“detain” means:
(a) take into immigration detention; or
(b) keep, or cause to be kept, in immigration detention;
and includes taking such action and using such force as are reasonably necessary to do so.
…
“immigration detention” means:
(a) being in the company of, and restrained by:
(i) an officer …
…
(b) being held by, or on behalf of, an officer:
(i) in a detention centre established under this Act; or
(ii) in a prison or remand centre of … a State …; or
(iii) in a police station or watch house …
…
“migration zone” means the area consisting of the States …
…
“officer” means:
(a) an officer of the Department …
…
(d) a member … of the police force of a State …
29 Sections 13 to 15 provided as follows:
13
(1) A non-citizen in the migration zone who holds a visa that is in effect is a lawful non-citizen.
…
14
(1) A non-citizen in the migration zone who is not a lawful non-citizen is an unlawful non-citizen.
…
15
To avoid doubt…if a visa is cancelled its former holder, if in the migration zone, becomes, on the cancellation, an unlawful non-citizen unless, immediately after the cancellation, the former holder holds another visa that is in effect.
30 As at 29 February 2012, the commencement date of the first period of detention to which Mr Guo’s claim relates, s 189(1) provided that:
If an officer knows or reasonably suspects that a person in the migration zone (other than an excised offshore place) is an unlawful non-citizen, the officer must detain the person.
31 Section 196 provided:
(1) An unlawful non-citizen detained under section 189 must be kept in immigration detention until he or she is:
(a) removed from Australia under section 198 or 199; or
(b) deported under section 200; or
(c) granted a visa.
(2) To avoid doubt, subsection (1) does not prevent the release from immigration detention of a citizen or a lawful non-citizen.
(3) To avoid doubt, subsection (1) prevents the release, even by a court, of an unlawful non-citizen from detention (otherwise than for removal or deportation) unless the non-citizen has been granted a visa.
(4) Subject to paragraphs (1)(a), (b) and (c), if the person is detained as a result of the cancellation of his or her visa under section 501, the detention is to continue unless a court finally determines that the detention is unlawful, or that the person detained is not an unlawful non-citizen.
…
(6) This section has effect despite any other law.
32 Amendments made to s 196 by 3 December 2014, when Mr Guo was again detained, are not material.
4. Principles
33 The parties agreed a number of matters about the operation of the statutory provisions, including the following.
(1) s 189 does not confer a discretion. If an officer knows or reasonably suspects that a person is an unlawful non-citizen the officer must detain the person (Ruddock v Taylor [2005] HCA 48; (2005) 222 CLR 612 at [23]);
(2) because s 189 “is directed not only to cases where an officer knows that a person is an unlawful non-citizen, it extends to cases where the officer reasonably suspects that a person has that status” it follows that “demonstrating that a person is not an unlawful non-citizen does not necessarily take the person beyond the reach of the obligation which s 189 imposes on officers”. Accordingly, the section imposes the duty on an officer to detain a person “where an officer is subjectively convinced that a person is an unlawful non-citizen but later examination reveals that opinion to have been legally flawed”. The disjunctive expression “knows or reasonably suspects” does not “leave, as a middle ground, falling outside the operation of the expression, a case where an officer's subjective opinion has passed from suspicion to certainty of belief but the subject-matter of the belief (what the officer ‘knows’) is legally inaccurate. Rather, in such a case the officer ‘knows or … suspects’ that the person is an unlawful non-citizen and the critical question would be whether the certainty of belief professed by the officer was reasonably based” (Ruddock v Taylor at [27]);
(3) “…what constitutes reasonable grounds for suspecting a person to be an unlawful non-citizen must be judged against what was known or reasonably capable of being known at the relevant time” (Ruddock v Taylor at [40]); and
(4) in determining if a suspicion is reasonable or not, no distinction should be drawn between errors of law and of fact (Ruddock v Taylor at [41]).
34 Further, it was common ground that as Mr Guo was in fact detained under s 189, the burden of proof rested on the Commonwealth to provide lawful justification for the detention (Ruddock v Taylor at [97] and [140]).
35 In determining whether an officer’s suspicion that a person is an unlawful non-citizen was reasonable:
(1) “…in order to justify arrest and detention, the suspicion that a person is an unlawful non-citizen must be justifiable upon objective examination of relevant material. Given that deprivation of liberty is at stake such material will include that which is discoverable by efforts of search and inquiry that are reasonable in the circumstances” (Goldie v Commonwealth of Australia [2002] FCA 433; (2002) 117 FCR 566 at [4]);
(2) “…[r]easonable suspicion…lies somewhere on a spectrum between certainty and irrationality. The need to ensure that arrest is not arbitrary suggests that the requirement for a reasonable suspicion should be placed on that spectrum not too close to irrationality” (Goldie at [5]);
(3) an officer is “not empowered to act on a suspicion reasonably formed that a person may be an unlawful non-citizen. The officer is to detain a person whom the officer reasonably suspects is an unlawful non-citizen” (Goldie at [6]);
(4) “…an officer in forming a reasonable suspicion is obliged to make due inquiry to obtain material likely to be relevant to the formation of that suspicion” (Goldie at [6]);
(5) “[f]irst, whether a suspicion is reasonably held must be judged in the light of the facts available to the officer at that particular time. Second, the awareness of conflicting facts that are discarded or ignored has a tendency to undermine the reasonableness of the suspicion otherwise held. Third, reliance upon stale or out of date information, or a partial search of the record without making more recent inquiries, may constitute unreasonable conduct” (Kostopoulos v Commonwealth of Australia [2012] NSWSC 1534 at [54]);
(6) the facts as they appear at the time must be sufficient to induce the required state of mind in a reasonable person (George v Rocket (1990) 170 CLR 104 at 112);
(7) the required state of mind is suspicion, not belief, so that the “facts which can reasonably ground a suspicion may be quite insufficient reasonably to ground a belief, yet some factual basis for the suspicion must be shown” (George v Rocket at 115). But even if it is “belief” which is required (in contrast to a mere suspicion), “the assent of belief is given on more slender evidence than proof” (George v Rocket at 116);
(8) it is the detaining officer who must have the relevant state of mind, but that state of mind “may be based on hearsay material or materials which may be inadmissible in evidence”, provided the materials “have some probative value” (Hyder v Commonwealth of Australia [2012] NSWCA 336; (2012) 217 A Crim R 571 at [15](4)). Thus, an officer “is entitled to form a belief based on what they have been told. The reasonable belief may be based on information which has been given anonymously or on information which turns out to be wrong. The question whether information considered by the arresting officer provided reasonable grounds for the belief depends on the source of the information and its context, seen in the light of the whole of the surrounding circumstances and, having regard to the source of that information, drawing inferences as to what a reasonable person in the position of the independent observer would make of it” (Hyder at [15](8) referring to O’Hara v Chief Constable of Royal Ulster Constabulary [1997] AC 286 per Lord Hope);
(9) “…whether the relevant person had reasonable grounds for forming a suspicion or a belief must be determined not according to the subjective beliefs of the police at the time but according to an objective criterion” (Hyder at [15](7) referring to Anderson v Judges of the District Court of New South Wales (1992) 27 NSWLR 701 at 714 per Kirby P);
(10) “[t]he identification of a particular source, who is reasonably likely to have knowledge of the relevant fact, will ordinarily be sufficient to permit the Court to assess the weight to be given to the basis of the expressed [state of mind] and, therefore, to determine that reasonable grounds for [it] exist” (Hyder at [15(9) quoting New South Wales Crime Commission v Vu [2009] NSWCA 349 at [46]); and
(11) in Okwume v Commonwealth [2016] FCA 1252 Charlesworth J said that:
[130] Where the context is one in which a person is detained by an officer under s 189 of the Act on the basis of a suspicion that the person’s visa has been cancelled, the suspicion will not, in my opinion, be objectively reasonable if the officer at the relevant time knows, or ought reasonably to know, matters that would put a reasonable person in the officer’s position on notice that the cancellation decision is irregular or ineffective.
[131] It is to be borne in mind that the High Court [in Ruddock v Taylor] expressly rejected there being any relevant distinction between mistakes of fact and mistakes of law in assessing the reasonableness of an officer’s suspicion under s 189 of the Act. It follows, in my opinion, that the Court must ascertain the knowledge that the detaining officer had or ought reasonably to have had, not only in respect of the facts, but also in respect of the requirements of the law. Again, the question of whether a detaining officer ought reasonably to have known the requirements of the law will turn on the whole of the legal and factual context in which the impugned act of detention occurs.
36 There is a potentially difficult issue in this matter arising from the Commonwealth’s submission that:
Where an officer detains the Applicant because of a decision taken by a third party (e.g. the Minister for Immigration and Border Protection), or because of legal advice or a policy position stated by a third party (e.g. another officer within the Department or the Department itself), it is not relevant to ask whether that decision, advice or policy is itself objectively reasonable (in the sense of being justifiable). Rather, the relevant question is whether it is reasonable or justifiable for a person in the position of the officer detaining the Applicant to rely on that decision, advice or policy when determining whether the Applicant is an unlawful non-citizen.
37 This is not common ground and I will deal with it separately.
38 There is another potentially difficult issue in this matter as to whether continuing detention may only be lawfully justified if an officer continues to hold the relevant reasonable suspicion and, if so, a further question arises as to which officer must continue to have that state of mind. The Commonwealth contends that provided the initial arresting officer held the requisite state of mind, detention may continue indefinitely without any officer continuing to hold that state of mind. Rather, s 196 determines whether the detention of the person may continue. The Commonwealth contends that, in the alternative, if there is any requirement for an officer to continue to have the relevant state of mind, then that state of mind may be held by either the officer who originally detained the person or by an officer continuing to detain the person. Further, that if the first officer who initially arrested and detained a person did not have the requisite state of mind, but a second officer who continues to detain the person does have the requisite state of mind, the continued detention is lawfully justified from the time the state of mind is held by the second officer. I will also deal with these issues separately as they are not common ground.
39 What is common ground is that in order for the initial arrest and detention to be lawfully justified the officer arresting and detaining the person must reasonably suspect the person is an unlawful non-citizen at the time of the arrest and detention.
5. Reliance on a policy or advice
40 I do not accept the Commonwealth’s submission that, to the extent an officer relied on a policy or advice stated by another (for example, a policy, advice or guideline issued by the Department itself), it is not relevant to ask whether that policy, advice or guideline was objectively reasonable.
41 The reason that I do not accept this submission is that in answering the question whether it was reasonable for the officer to rely on that advice or policy, the content of the policy and its apparent reasonableness or otherwise, and all surrounding circumstances, must be evaluated. This is a result of the requirement introduced by the qualification of “reasonableness” on the “suspicion”, which is to be assessed objectively in all of the circumstances.
42 Accordingly, in deciding if it was reasonable for an officer to rely on Departmental policy, advice or guidelines all relevant circumstances known or which were reasonably capable of being known at the time must be considered. These considerations necessarily include the content of the Departmental information.
43 Further, and as submitted for Mr Guo, it cannot be the case that mere reliance on a policy, advice or guideline (or, for that matter, an instruction from a superior), of itself, is necessarily sufficient in every case to discharge the onus of proof without consideration being given to all surrounding circumstances. If that were so, a reasonable suspicion could be formed by a detaining officer based on a policy, advice or instruction known by the person issuing it to be wrong. The effect of the submission is to render the detaining officer a mere cipher; a person inferred to act on the basis of unquestioning obedience to Departmental policies and instructions and without the bringing to bear of any independent judgment. Such an approach is inconsistent with the Act, which not only vests in relevant officers a significant power (to deprive an individual of their liberty) but also constrains the exercise of that power by an equally significant responsibility personal to the individual officer (to know or reasonably suspect that a person is an unlawful non-citizen).
44 Accordingly, it is not possible to state any general principle as proposed by the Commonwealth. Whether a suspicion is a reasonable suspicion is a question of fact to be determined in the light of all surrounding circumstances applicable to the particular case.
6. Continuing detention
6.1 The Commonwealth’s submissions
45 As noted, the Commonwealth’s principal submission is that “once detained under s 189, the duration of the detainee’s detention is determined by s 196 of the Act. That is, after the initial detention, ss 189 and 196 do not require any person to maintain a reasonable suspicion that the Applicant is an unlawful non-citizen”.
46 In support of its principal submission, the Commonwealth referred to Al-Kateb v Godwin [2004] HCA 37; (2004) 219 CLR 562 and Re Woolley; Ex parte Applicants M276/2003 (2004) 225 CLR 1; [2004] HCA 49. In Al-Kateb at [224] Hayne J, with whom McHugh and Heydon JJ agreed, said:
The provisions requiring detention of unlawful non-citizens do not expressly refer to the purpose of detention. Rather, s 189 requires officers to detain unlawful non-citizens and s 196 identifies the period of detention.
47 In Re Woolley at [224] Hayne J (with whom Heydon J agreed) said:
As I sought to explain in Al-Kateb, there is nothing about the decision-making that must precede detention which bespeaks an exercise of judicial power. If an officer knows or reasonably suspects that a person in the migration zone (other than an excised offshore place) is an unlawful non-citizen, the officer must detain the person. But continued detention does not depend upon the holding of that suspicion. Continued detention under s 196 is predicated upon the person being an unlawful non-citizen. It does not depend upon the formation of any opinion of the Executive. In particular, it does not depend upon the formation of any opinion of the Executive about whether detention is necessary or desirable whether for purposes of investigation or any other purpose. That judgment has been made by the legislature. The Act provides that the detention of an unlawful non-citizen must continue until the detainee is removed or deported or granted a visa and removal must occur “as soon as reasonably practicable” after the occurrence of events which the Act identifies.
48 To similar effect in Plaintiff M168/10 v The Commonwealth of Australia [2011] HCA 25; (2011) 279 ALR 1 Crennan J said:
[34] It can also be noted that even when an applicant is ultimately found to be a lawful non-citizen, detention mandated by s 189(1) is not thereby rendered unlawful. Ruddock v Taylor supports the proposition that the power to detain under s 189(1), which includes the power to arrest, is to be read so as to include the power to continue to detain. See also the definition of “detain” in s 5(1) of the Act. It appears to me that the detention of the plaintiffs in Melbourne is detention which is authorised and mandated by s 189(1) because, as explained by Hayne J in Re Woolley …, the legislature has made a judgment about the necessity and desirability of the detention of unlawful non-citizens in the migration zone (other than an excised offshore place).
[35] …It is plain that s 189(1) applies except when an unlawful non-citizen is in an excised offshore place and that s 189(3) applies when an unlawful non-citizen is in an excised offshore place. Accordingly, s 189(1) applies to the present detention of the plaintiffs in Melbourne. Having been detained under s 189(1), the detention of the plaintiffs continues until the occurrence of one of the events specified in s 196(1) of the Act, namely, removal, deportation or the grant of a visa.
49 In Commonwealth of Australia v Fernando [2012] FCAFC 18; (2012) 200 FCR 1 the Full Court of the Federal Court held at [69]:
Nonetheless, s 189(1) operated to require an officer to whom it applied to detain a person in both senses of “detain”, namely it required an officer with the requisite state of mind to take the person into immigration detention either by physically depriving the person of his or her liberty or transforming the nature of the custody or detention in which the person was held, such as serving a term of imprisonment, into immigration detention. Once the person had been detained, by being taken into detention within the meaning of the first sense of “detain”, ss 189(1) and 196(1) required the initial detaining officer and all other officers with the requisite state of mind, to keep the person, or cause him or her to be kept, in immigration detention.
50 The Commonwealth submitted that to the extent Charlesworth J suggested otherwise in Okwume at [196], her Honour was incorrect. At [196] Charlesworth J said:
Section 196(2) of the Act provides that nothing in s 196(1) prevents the release from immigration detention of a person having the actual status of a lawful non-citizen. However, it does not follow that a person who has the actual status of a lawful non-citizen is entitled to be released. The person must, in my opinion, be kept in detention for so long as the detaining officer maintains a reasonable suspicion that the person does not have that status. Consistent with what I have said in connection with s 189 of the Act, the reasonableness of the suspicion will depend upon what is known or reasonably capable of being known by the detaining officer. Circumstances may arise in which the detaining officer’s suspicion under s 189 of the Act no longer persists in fact, or in which a suspicion that was once reasonably held no longer has an objectively reasonable quality. A detaining officer who no longer has a reasonable suspicion that a person is an unlawful non-citizen must proceed on the basis that the person falls within s 196(2) of the Act. Nothing in either s 189 or s 196(1) of the Act would mandate the person’s continued detention. There being no other provision lawfully justifying the continued detention of the person, the person must be released.
51 According to the Commonwealth:
A person detained under s 189 who is, in fact, a citizen or lawful non-citizen may be released from immigration detention: see s 196(2) and (4). However, a release in these circumstances occurs where it is determined that the detainee is a citizen or lawful non-citizen. In the case of detainees within the scope of s 196(4) (which the present case is not, as it was a visa refusal on character grounds rather than a visa cancellation on such grounds), only a Court can make such a determination. This supports the proposition that continuing detention under s 196 does not require officers to hold a constant, ongoing suspicion that the detainee is an unlawful non-citizen. Rather, the detention continues unless and until a determination is made that the Applicant is a lawful non-citizen (or unless and until one of the events in s 196(1) occurs). Ordinarily, such a determination would be made where there is some event or change in circumstance that would cause the detainee’s status to be reconsidered.
… It appears to be common ground that it cannot have been the intention of Parliament that the Commonwealth would have to identify a particular officer or officers who continuously held the requisite suspicion for every hour, minute and second of the Applicant’s detention (as well as a similar suspicion in respect of every other person in immigration detention).
… there is nothing in the text of ss 189 or 196 that requires any regular reviews of the Applicant’s status. What would such reviews involve? How regularly must the reviews be performed? Who must perform the reviews? The fact the statute does not provide a clear answer to these questions suggests that the statute does not impose the requirement proposed by the Applicant.
52 The Commonwealth submitted that its approach was supported by the temporal sequences apparent in ss 189 to 196. A person is initially detained under s 189. The person must be notified of certain matters as soon as reasonably practicable after the detention under s 194. The detainee may apply for a visa within the time constraints imposed by s 195. The duration of detention is governed by s 196. The Commonwealth also noted s 196(4) which provided that if detention is the result of visa cancellation under s 501 (or other provisions) then “the detention is to continue unless a court finally determines that the detention is unlawful, or that the person detained is not an unlawful non-citizen”. While not applicable to Mr Guo the Commonwealth submitted that it is apparent from this provision that continued detention is not dependent on any officer holding a reasonable suspicion that the person is an unlawful non-citizen. As the Commonwealth put it:
There is no reason to treat the cases of persons to whom s 196(4) does not apply any differently, save that in the case of such persons, a decision could be made administratively to release the person if it were determined, for example, that the person was not an unlawful non-citizen.
53 If, contrary to its principal position, it is necessary that there be an officer continuing to hold the required reasonable suspicion, the Commonwealth submitted that:
… in the absence of any event that might call for reconsideration of the position, the Court should readily infer that those officers, and any other officers involved in the Applicant’s ongoing detention, continued to hold the requisite suspicion.
54 In support of this submission the Commonwealth referred to:
(1) Ruddock v Taylor at [51] that:
Nothing was said to have occurred during either period of detention that would affect the conclusions that, until an order was made quashing the relevant decision to cancel the respondent's visa, those who detained the respondent reasonably suspected that he was an unlawful non-citizen, and that accordingly, his detention was lawful and required by the Act.
(2) Fernando at [99] that:
… it is natural to presume that once a person has been detained inside a jail or detention facility, their detention has been authorised by law
55 Accordingly, in the alternative to its principal case, the Commonwealth said:
Hence, even if the Commonwealth does bear an onus to demonstrate a continuing reasonable suspicion under s 189 of the Act throughout the First and Second Periods of detention, satisfaction of that onus should not be considered a heavy forensic burden. That burden could be satisfied by establishing that:
(a) the initial detention of the Applicant was lawfully justified; and
(b) there was no subsequent event which required the Applicant’s status to be reconsidered.
6.2 The applicant’s submissions
56 The applicant submitted that the Commonwealth’s principal case cannot readily be reconciled with Ruddock v Taylor or Fernando. In Ruddock v Taylor the decision turned on s 189, not s 196 as is apparent from the reasons at [28] in which Gleeson CJ, Gummow, Hayne and Heydon JJ said:
That is, it follows from the considerations just mentioned that s 189 may apply in cases where the person detained proves, on later examination, not to have been an unlawful non-citizen. So long always as the officer had the requisite state of mind, knowledge or reasonable suspicion that the person was an unlawful non-citizen, the detention of the person concerned is required by s 189.
57 The proposition in Fernando at [69], repeated in [72], also emerges from observations including:
(1) “[t]he Commonwealth’s argument did not exhaust or exclude the application of s 189(1) to the persons who actually took Mr Fernando into immigration detention. The individual who physically takes a person into immigration detention must have at that time one of the two states of mind prescribed by s 189(1) so as to justify him or her in the act of depriving or interfering with the liberty of another: Ruddock at [40], [221]. It is not enough for the actual person effecting that deprivation or interference to think that someone else knows or believes the detainee is an unlawful non-citizen” (at [84]);
(2) “…there was no evidence that any of them evinced a consciousness or intention that what he or she was doing, after hearing what Mr Fernando said, was acting under s 189(1), rather than assuming, as would be natural, that he was already in immigration detention under whatever power was necessary to justify this” (at [96]);
(3) “…[o]nce Mr Fernando had been received into the detention centre, it is unlikely that any official would have turned his or her mind to effecting a fresh act that amounted to detaining him under s 189(1). That exercise was the responsibility of the persons who had detained him on 5 October 2003 at the prison and who processed him on arrival at the detention centre. There was no evidence that they had done so” (at [97]);
(4) “[i]n the ordinary course the person in charge of a detention centre or jail must satisfy himself or herself that the violation of an individual’s liberty that will occur on receiving him or her into the facility has been authorised according to law. That did not happen in Mr Fernando’s case. The casual attitude exhibited by all the persons concerned in his detention to whether the requirements of s 189(1) had been satisfied is unlikely to have been exceptional” (at [98]);
(5) “[i]f Mr Fernando could be detained for over three years when no-one turned his or her mind to complying with s 189(1), so could anyone else, including Australian citizens. It is not unusual for persons detained by those in authority to be ignored when they protest that the officials had no right to detain them. That is because it is natural to presume that once a person has been detained inside a jail or detention facility, their detention has been authorised by law. That presumption is a natural consequence of our society’s fundamental value of, and belief in, the rule of law and its abhorrence of arbitrary detention or imprisonment” (at [99]);
(6) “…there was no evidence that, at any time during his immigration custody, any officer, as defined, ever took Mr Fernando into detention or kept or caused him to be detained there with any state of mind required in s 189(1)” (at [100]) so that “the Commonwealth failed to prove that its conduct in detaining Mr Fernando on 5 October 2003 or later was lawful” (at [101]).
58 Plaintiff M168/10 at [34], it was submitted, supports the case for Mr Guo not the Commonwealth, as it refers to s 189(1) being the source of the power to detain and to continue to detain.
59 Re Woolley, it was submitted, also supports Mr Guo’s case and not that of the Commonwealth. The reasons of Hayne J at [224] do not merely say that “continued detention does not depend upon the holding of that suspicion” (that is, the reasonable suspicion required by s 189(1)). His Honour said that “[c]ontinued detention under s 196 is predicated upon the person being an unlawful non-citizen. It does not depend upon the formation of any opinion of the Executive. … The Act provides that the detention of an unlawful non-citizen must continue until the detainee is removed or deported or granted a visa and removal must occur ‘as soon as reasonably practicable’ after the occurrence of events which the Act identifies”. In other words, this reasoning is to the effect that continued detention depends on the fact of being an unlawful non-citizen, not a state of mind of any officer. On this approach, s 189(1) uses “detain” in the sense of sub para (a) of the definition in s 5(1) ((a) take into immigration detention) and s 196(1) uses “detain” in the sense of sub para (b) of the definition in s 5(1) ((b) keep, or cause to be kept, in immigration detention).
60 This approach accords with Minister for Immigration and Multicultural and Indigenous Affairs v VFAD [2002] FCAFC 390; (2002) 125 FCR 249 at [152] in which the Full Court of the Federal Court endorsed the reasoning of Gray J in VHAF v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 1243 as follows:
77. It will be seen that that definition has two parts. “Detain” can mean the act of taking into detention. It can also mean the continued holding of a person in detention. On this basis, counsel for the Minister submitted that the effect of s189 is twofold. Not only is there a power, and a duty, to take a person into detention if an officer knows or reasonably suspects that the person is an unlawful non-citizen, but there is also a power, and a duty, to keep that person in detention until the reasonable suspicion has been allayed. Thus, counsel for the Minister submitted, it cannot be said that the detention of the applicant became unlawful if a visa was granted on 7 December 2001 unless the applicant can show that no relevant officer of the Department held a reasonable suspicion that the applicant was an unlawful non-citizen.
78. To construe s189 in that way would be productive of serious practical difficulties. It would be almost impossible to know whether, somewhere in the Department, there existed an officer, perhaps ignorant of recent developments or other facts, harbouring a suspicion that could therefore be considered to be reasonable, so that continued detention of a person was required. Even if the officer responsible for the original detention no longer had a reasonable suspicion that the person detained was an unlawful non-citizen, that officer would be powerless to arrange the release of the person unless he or she became satisfied that no other officer held such a reasonable suspicion. It would be almost impossible for a person in detention to know whom to contact for the purpose of providing information that would allay a reasonable suspicion.
79. Fortunately, s189 is susceptible of a construction that could avoid such dramatic results. It should be noted that the definition of “detain” in s5(1) of the Migration Act is expressed in the alternative. The use of the disjunctive between the two arms of the definition appears to have been a deliberate step by the drafter, for the purpose of making the definition useful in a variety of contexts. It is also worth noting that, in the terms of s5(1), the definition is applicable throughout the Migration Act “unless a contrary intention appears”. An examination of the context of s189 makes it clear that the word “detain” in s189 has the meaning given by the first limb of the definition of “detain” in s5(1), namely to take into immigration detention. It is s196 that provides for the keeping of such a person in immigration detention until one of the events referred to in s196(1) occurs. Counsel for the Minister pointed out that s196(2) is expressed in permissive terms, rather than in terms that mandate the release from detention of a citizen or a lawful non-citizen. This is so. It is also true that s196(2) contains no reference to s189. The clear assumption underlying these provisions is that detention of a citizen, or a lawful non-citizen, is unlawful unless justified. The taking into detention of such a person may be justified on the basis of a reasonable suspicion that the person is an unlawful non-citizen. If, in fact, the person is a lawful non-citizen, there is an entitlement to immediate release.
80. In my view, s189 of the Migration Act provides no authority for the continued detention of a lawful non-citizen. If the applicant succeeds at the trial in establishing that a protection visa was granted to him on 7 December 2001, it will be possible for him to succeed in his claim for a declaration that his detention since that date has been unlawful. Nothing in Goldie v Commonwealth of Australia [2002] FCA 433 at [6] and [20] per Gray and Lee JJ and [45] - [47] per Stone J, or in NAAV v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 228 at [367] per Wilcox J, [454] and [580] per French J and [645] per von Doussa J, with whom Black CJ and Beaumont J agreed, on both of which counsel for the Minister relied, contradicts this proposition. The comments made in Goldie were directed to the process of taking into detention, not to the question of continued detention. …
61 The observations in Goldie at [6] include that “[s]ection 196 operates upon a person detained under s189 who is an unlawful non-citizen, not upon a person reasonably suspected of being an unlawful non-citizen”.
62 As the applicant put it:
The construction of ss 189 and 196 adopted by Hayne J and Heydon J in Woolley, Gray J in VHAF and the Full Court in VFAD reflects a principled analysis of the two provisions. It has the consequence that a person taken into detention cannot complain about that action if it has a reasonable basis, but the continued detention of a citizen or a lawful non-citizen is unauthorised. To the extent that Ruddock, Fernando and Plaintiffs M168/10 are to the contrary, it is formally submitted that they are wrong.
As noted above, if this construction of ss 189 and 196 is correct, the power of any officer to “detain” Mr Guo on the basis of a reasonable suspicion that he did not hold a visa applied only to the acts of taking him into detention. Because he was not an unlawful non-citizen, there was no power to keep him in detention thereafter. His claim must, therefore, succeed in respect of all but the initial moments of each period of detention. (As to those initial moments, an inquiry into the existence of a reasonable suspicion under s 189(1) would be required.)
The Commonwealth’s position at [31] (emphasising ss 196(2) and (4)) appears to rest on an understanding that a citizen or lawful non-citizen, who has been detained under s 189, can lawfully be kept in detention under s 196—regardless of whether anybody believes him or her to be an unlawful non-citizen—until a court orders his or her release. Apart from being an alarming result, and contrary to the plain words of s 196(1), it is simply illogical. It means that detention is lawful until a court orders the detainee’s release; but a Chapter III court has no power to make that order without having held that the detention is unlawful. The Commonwealth’s construction is also inconsistent with the way in which the word “detention”, as it appears in s 196(3), has been construed by the High Court: detention means lawful detention. Subsection (4) ought to be construed in the same way.
Alternatively, if Hayne J’s construction does not have the consequence described above, it means at least that the formation of opinions after the initial detention of Mr Guo was irrelevant. Thus, if the Commonwealth is unable to demonstrate that those officers who took Mr Guo into immigration detention on 29 February 2012 and 3 December 2014 had a reasonable suspicion that he was an unlawful non-citizen, it will follow that Mr Guo was detained unlawfully in respect of the entire First and Second Periods—irrespective of what any officer knew, or suspected, at times after Mr Guo was taken into detention on those dates.
6.3 Discussion
63 In dealing with the competing submissions about the meaning of ss 189 and 196 it is necessary to keep in mind that the various cases deal with different issues. Some parts of the decisions concern the relationship between the two provisions. Others concern the meaning to be given to “reasonable suspicion”. Others again concern questions of fact and inference dependent on the circumstances of the individual case.
64 Am I bound by Ruddock v Taylor, Fernando and Plaintiff M168/10 to accept the Commonwealth’s principal submission that provided a person was initially taken into immigration detention by an officer who reasonably suspected the person of being an unlawful non-citizen in accordance with s 189(1), the person must be kept in immigration detention thereafter under s 196(1) until one of the events in s 196(1)(a) to (c) occurs whether or not (i) any officer continues to reasonably suspect the person is an unlawful non-citizen, and (ii) the person is in fact an unlawful non-citizen?
65 It may be accepted that Ruddock v Taylor decided that an officer may hold the requisite reasonable suspicion under s 189(1) even if the person is not an unlawful non-citizen, the reasonable suspicion being based on an error of law or fact. On the facts in Ruddock it was proved that each detaining officer reasonably suspected that the respondent was an unlawful non-citizen on the basis of satisfying themselves that the respondent’s visa had been cancelled and the respondent held no other visa (at [49]-[50]). At [51] it was held that:
It also follows from that fact, and the reasons given earlier, that the respondent's detention was lawful and required by the Act. Nothing was said to have occurred during either period of detention that would affect the conclusions that, until an order was made quashing the relevant decision to cancel the respondent’s visa, those who detained the respondent reasonably suspected that he was an unlawful non-citizen, and that accordingly, his detention was lawful and required by the Act.
66 The reasoning at [51] contemplates that the lawfulness of continued detention of a person reasonably suspected to be an unlawful non-citizen may change during the course of detention as a result of an event which could affect the state of mind of the detaining officer or officers.
67 One essential component of the decision in Ruddock v Taylor is that the lawfulness of continuing detention does not depend on the fact whether the person is or is not an unlawful non-citizen. To the extent that the applicant relied on Al-Kateb and Re Woolley to support the proposition that continued detention is necessarily unlawful if the person is not in fact an unlawful non-citizen, I am unable to reconcile that proposition with the reasoning in Ruddock v Taylor.
68 Another essential component of the reasoning in Ruddock v Taylor is that, on the facts of that case, it should be inferred that the officers who detained the respondent, at all material times, held the requisite reasonable suspicion under s 189(1). To the extent that the Commonwealth submitted that continued detention was regulated by s 196(1) which did not require the existence of any state of mind on the part of an officer, again, I find the proposition impossible to reconcile with the reasoning in Ruddock v Taylor.
69 To my mind Ruddock v Taylor does not suggest that a person is detained under s 189(1) and then kept in detention under s 196(1). Rather, the reasons indicate that a person is detained and kept in detention under s 189(1) with the period of detention being fixed by s 196(1) (see at [11]). If it were otherwise then the observations at [51] would be redundant (because s 196(1) does not depend on the existence of a state of mind) and the observations at [11] would be inaccurate (because s 196 would not merely fix the period of detention but would empower the continuing detention).
70 For these reasons I do not accept the approach of either party to Ruddock v Taylor. It does not support the Commonwealth’s principal contention that a person reasonably suspected of being an unlawful non-citizen may continue to be detained under s 196(1) whether or not any officer continues to hold that reasonable suspicion. It supports the contrary proposition that the continuation of a reasonable suspicion is necessary to enable continued detention. It also does not support the submission for Mr Guo that a person must in fact be an unlawful non-citizen in order for continued detention under s 196(1) to be lawful. Again, it supports the contrary proposition that continued detention may be lawful under s 189(1) provided an officer continues to hold the requisite reasonable suspicion. It also supports another proposition, which concerns an issue of fact or, more properly, inference: namely, that if an officer held a reasonable suspicion at the time a person was detained, that reasonable suspicion may continue to exist. Facts and inferences from fact, however, depend on the individual circumstances of each case.
71 I am also unable to reconcile the reasoning in Ruddock v Taylor with that in VHAF and VFAD. The reasoning in Ruddock v Taylor does not support the view that s 189(1) concerns taking a person into detention and s 196(1) keeping a person in detention. Further, Ruddock v Taylor inescapably stands for the proposition that any person, citizen or not, may lawfully be detained provided that the detaining officer reasonably suspects the person of being an unlawful non-citizen.
72 The approach in Ruddock v Taylor, it must be said, is not readily reconcilable with the observations on which the parties relied in Al-Kateb and Re Woolley. Neither of these cases, however, concerned a claim for false imprisonment. Al-Kateb involved a person who was willing to be removed from Australia but could not be removed; the question was whether this person, faced with the prospect of indefinite detention, was required to be released. There was no issue about the appellant’s status. He was in fact an unlawful non-citizen. Re Woolley involved persons who were minors who also, in fact, were unlawful non-citizens. Neither case refers to Ruddock v Taylor. Given the different context, it cannot be said that any arguable inconsistency between the reasoning in these cases and Ruddock v Taylor suggests that Ruddock v Taylor is no longer good law. Given this, to the extent of any inconsistency between the reasoning in Ruddock v Taylor, which is directly on point, and these cases, for present purposes the reasoning in Ruddock v Taylor must prevail. This said, there are some possible inconsistencies:
(1) the reasoning in Al-Kateb and Re Woolley, arguably, does not confine the operation of s 196(1) to the fixing of the period of detention under s 189(1). It is to the effect that a person detained under s 189(1) must continue to be detained under s 196(1); and
(2) the reasoning in Al-Kateb and Re Woolley about s 196(3), that the provision pre-supposes the detention is lawful, suggests that s 196 as a whole is concerned with lawful detention of persons who are in fact unlawful non-citizens, and not merely persons who are reasonably suspected to be unlawful non-citizens but in fact are lawful non-citizens.
73 Plaintiff M168/10 concerned interlocutory relief. Justice Crennan referred at [30] to the statement of Hayne J in Re Woolley at [224] and at [34] to Ruddock v Taylor without suggesting any inconsistency between the two might exist.
74 In Fernando the respondent was taken into immigration detention following the cancellation of his visa on 5 October 2003, before receipt of Mr Fernando’s submissions about why his visa should not be cancelled. Mr Fernando remained in detention until 18 January 2007 at which time he was released because it was then accepted that the decision to cancel his visa might be invalid for denial of procedural fairness. Mr Fernando claimed damages on a range of grounds including false imprisonment. The Commonwealth claimed that the detention was lawful relying on s 189(1), the existence of a reasonable suspicion that Mr Fernando was an unlawful non-citizen (by reason of the visa cancellation). A question which arose on the facts was the officer who had to hold the reasonable suspicion. At [69] the Full Court referred to the need for the initial detaining officer and all officers thereafter detaining a person to hold the requisite state of mind.
75 At [71] in Fernando the Full Court noted that “[i]n Ruddock at [49]–[50] it is recorded that each of the officers who had been responsible for effecting Mr Taylor’s detention gave evidence of the steps they had taken before detaining him.” By this I take it that the Full Court understood that, on the facts in Ruddock v Taylor, all officers who were responsible for detaining the respondent in that case proved that they held a reasonable suspicion that Mr Taylor was an unlawful non-citizen (as a result of which the detention was lawful). The Full Court continued at [72]:
This construction is reinforced by s 194(1), although, by force of s 193(1)(a)(iv), it did not apply in a case, such as Mr Fernando’s, where the Minister personally had cancelled a person’s visa. Section 194(1) required the officer who detained a person under s 189 to make the detainee aware of his or her right to apply for a visa under s 195(1). It would defeat the purpose of s 195(1) if “detains”, as used in s 194(1) extended to the second sense of the definition, namely to keep or cause to be kept in immigration detention. This is because the Parliament intended that the detainee be made aware of his or her right to apply for a visa only once, namely, as soon as reasonably practicable after he or she was taken into immigration detention. On the other hand, s 189(1) also required other officers to keep the person detained, or cause him or her to be kept in immigration detention when they had one of the requisite states of mind. It follows that an officer with the necessary state of mind could detain a person by causing him or her to be kept in immigration detention because the first officer caused another officer to take the person into immigration detention and then keep the detainee there.
76 The observations in the last two sentences of [72] are consistent with this understanding. That is, the person responsible for taking and for keeping a person in immigration detention must hold the reasonable suspicion as required by s 189(1). On the facts in Fernando, however, the officer in fact detaining the respondent could not have formed the requisite state of mind relying on the request to detain received from another officer because the request to detain “was devoid of intelligible content that could be relied on to justify depriving Mr Fernando of his liberty” (at [74]). Added to this, there was no evidence that the persons who detained the respondent were officers for the purpose of s 189(1) (at [75]). As such, the “appellants failed to prove their case that anyone who detained Mr Fernando acted lawfully” (at [79]). The Full Court also noted that the respondent was transferred from Perth to Baxter detention centre and the “appellants made no attempt to prove the authority or state of mind of anyone at the Baxter detention centre to detain Mr Fernando in the event that his detention at the Perth centre had not been lawful” (at [80]). This statement discloses that the Full Court considered it necessary that the detaining officer hold the required reasonable suspicion throughout the respondent’s detention. Consistent with this, the Full Court said at [84] that:
The individual who physically takes a person into immigration detention must have at that time one of the two states of mind prescribed by s 189(1) so as to justify him or her in the act of depriving or interfering with the liberty of another: Ruddock at [40], [221]. It is not enough for the actual person effecting that deprivation or interference to think that someone else knows or believes the detainee is an unlawful non-citizen.
77 The Full Court also rejected the argument that the supervisor of the detention centre had the requisite state of mind. This involved a factual finding on the evidence, but salient to the inference drawn were the facts that: (i) there was no evidence that any of those “officials” was an “officer” for the purposes of s 189(1), (ii) while Mr Fernando was already in detention, there was no evidence that any of those persons detained him or turned his or her mind to doing so, (iii) there was no evidence that any of those persons evinced a consciousness or intention that what he or she was doing, after hearing what Mr Fernando said, was acting under s 189(1), rather than assuming, as would be natural, that Mr Fernando was already in immigration detention under whatever power was necessary to justify this (at [96]). The Full Court continued:
[97] In those circumstances, the Court should not draw the serious conclusion that perhaps one of the people connected to ACM or the Department to whom Mr Fernando spoke on 6 October 2003, was an “officer” who also formed the state of mind that he or she knew or reasonably suspected that Mr Fernando was an unlawful non-citizen and he or she was then and there taking him into immigration detention. In any event, this was not a case that the Commonwealth pleaded, let alone proved, to justify its detention of Mr Fernando. Once Mr Fernando had been received into the detention centre, it is unlikely that any official would have turned his or her mind to effecting a fresh act that amounted to detaining him under s 189(1). That exercise was the responsibility of the persons who had detained him on 5 October 2003 at the prison and who processed him on arrival at the detention centre. There was no evidence that they had done so.
[98] In the ordinary course the person in charge of a detention centre or jail must satisfy himself or herself that the violation of an individual’s liberty that will occur on receiving him or her into the facility has been authorised according to law. That did not happen in Mr Fernando’s case. The casual attitude exhibited by all the persons concerned in his detention to whether the requirements of s 189(1) had been satisfied is unlikely to have been exceptional.
[99] In one sense, with hindsight, it can be argued that Mr Fernando could have been lawfully detained on 5 October 2003 because he was then actually, or at least, able reasonably to be suspected to be, an unlawful non-citizen and so no real harm was done. But, that would make the safeguards that the Parliament enacted to protect individual liberty worthless. If Mr Fernando could be detained for over three years when no-one turned his or her mind to complying with s 189(1), so could anyone else, including Australian citizens. It is not unusual for persons detained by those in authority to be ignored when they protest that the officials had no right to detain them. That is because it is natural to presume that once a person has been detained inside a jail or detention facility, their detention has been authorised by law. That presumption is a natural consequence of our society’s fundamental value of, and belief in, the rule of law and its abhorrence of arbitrary detention or imprisonment.
78 None of these statements support the Commonwealth’s principal submission. In particular, the observation that “it is natural to presume that once a person has been detained inside a jail or detention facility, their detention has been authorised by law” should be understood as supporting the proposition that a presumption that a person has been lawfully detained because of the mere fact the person is in detention should not be taken to be the holding of the state of mind required by s 189(1). Section 189(1) requires the detaining officer actually to hold the reasonable suspicion, meaning that a mere presumption that detention is lawful is insufficient.
79 Based on this analysis, I do not accept that Ruddock, Fernando and Plaintiff M168/10 support the Commonwealth’s principal submission. To the contrary, they support the proposition that for a person to be taken into detention lawfully the detaining officer must hold the requisite reasonable suspicion and for a person to be kept in detention lawfully the detaining officer at that time must hold the requisite reasonable suspicion.
80 Further, the means by which such a reasonable suspicion may be formed, may be held and may continue are questions of fact and inference to be determined on the evidence of the particular case, not questions of statutory construction. Accordingly, to the extent that the Commonwealth’s principal submission depends on the impracticality or inconvenience of an officer having to hold the requisite state of mind for “every hour, minute and second” of Mr Guo’s continued detention, the submission is to be evaluated at the level of fact, not statutory construction or principle. It is also to be evaluated on the basis that it is the Commonwealth that bears the onus of proving the lawfulness of Mr Guo’s detention. How the Commonwealth chooses to attempt to do so is a matter for it. The Commonwealth is free, via the Department, to establish such policies, procedures and practices as it sees fit to enable it to be able to prove that persons are only detained, both initially and on a continuing basis, by an officer or officers under the Act who hold a suspicion which is reasonable in all the circumstances. The alleged difficulty or burden of the Commonwealth doing so deserves short shrift given that it is in control of its own process from beginning to end.
81 For these reasons it is not to the point that the statutory provisions do not provide for any review of the status of a detained person. The power which is vested in an officer to detain a person under s 189(1) is confined. If an officer detains a person, in the sense of either takes or keeps a person in an immigration detention, that officer must hold the requisite state of mind. All else is an issue of fact or inference from fact in circumstances where the onus is on the Commonwealth, not the detained person, and the Commonwealth can establish whatever procedures it wishes to ensure it can prove that any detention under the Act is lawful.
82 For these reasons also I am unable to accept the case put for Mr Guo that in order for Mr Guo’s continuing detention under s 196(1) to be lawful he had in fact and law to be an unlawful non-citizen with the result that, necessarily, all but his initial takings into detention during the two periods were unlawful. While this argument has some attraction given that we are dealing with depriving persons of their liberty, it is inconsistent with the reasoning in Ruddock v Taylor and Fernando by which I am bound. I am also unable to accept the submission for Mr Guo that the reasoning of Hayne J in Al-Kateb and Re Woolley means that the formation of the relevant state of mind after Mr Guo’s initial detention must be irrelevant. This proposition too is inconsistent with Ruddock v Taylor and Fernando. In other words, unlawful detention may become lawful from the time a detaining officer holds the requisite state of mind in accordance with s 189(1).
83 It follows that the reasoning of Charlesworth J in Okwume at [196] is consistent with that in Ruddock v Taylor and Fernando. In summary, based on Ruddock v Taylor and Fernando:
(1) for the taking of a person into immigration detention to be lawful, the Commonwealth must prove that the detaining officer or officers held a reasonable suspicion at that time that the person was an unlawful non-citizen;
(2) for the keeping of a person in immigration detention to be lawful, the Commonwealth must prove that the detaining officer or officers during the person’s detention held a reasonable suspicion that the person was an unlawful non-citizen;
(3) the lawfulness of detention, at all times, depends on the detaining officer or officers holding a reasonable suspicion that the person is an unlawful non-citizen;
(4) as such, lawful detention may become unlawful if a detaining officer does not or no longer holds a reasonable suspicion that the person is an unlawful non-citizen;
(5) similarly, unlawful detention may become lawful if the detaining officer forms a reasonable suspicion that the person is an unlawful non-citizen;
(6) whenever detention is or becomes unlawful, the person is falsely imprisoned and the Commonwealth may be liable for that tortious conduct;
(7) the Commonwealth bears the onus of proving the lawfulness of detention and thus must prove the existence of the relevant reasonable suspicion in the mind of the detaining officer or officers; and
(8) the Commonwealth’s complaints about the impracticality and inconvenience of having to prove the existence and subsistence of the required state of mind on the part of the detaining officer or officers do not carry weight. For one thing, when it comes to the deprivation of individual liberty, the common law is a vigilant guardian, and complaints by the person depriving another of their liberty that they might be inconvenienced by having to prove the lawfulness of the detention garner little support. For another, proof sufficient to establish the lawfulness of immigration detention involves matters of fact and of inference from fact. The Commonwealth is free to assist itself in discharging the onus of proof by the implementation of whatever systems, processes and safeguards it sees fit and by the calling of such evidence in any particular case as it sees fit.
84 Otherwise, the discussion above also supports the following:
(1) the required state of mind on the part of the detaining officer is a reasonable suspicion that the person is an unlawful non-citizen, not that the person might be or might become an unlawful non-citizen;
(2) there are no pre-determined rules about how the detaining officer might form such a reasonable suspicion, but such a suspicion must actually be held by the detaining officer. Mere belief or assumption that someone else might hold that state of mind does not answer the statutory requirement. Nor does a mere assumption that if a person is being detained the detention is lawful;
(3) if the source of the belief is a Departmental policy, advice, guideline or instruction that fact alone does not necessarily make a suspicion reasonable. It may or may not be reasonable for an officer to rely on a Departmental policy, advice, guideline or instruction depending on the circumstances. And even if it is reasonable for an officer to rely on a Departmental policy, advice, guideline or instruction, the suspicion may or may not be reasonable depending on other surrounding circumstances either known to or which ought reasonably to have been known or made known to the detaining officer;
(4) accordingly, if a Departmental policy, advice, guideline or instruction is itself unreasonable then a suspicion formed in reliance on such a policy, guideline or instruction may also not satisfy the statutory requirement; and
(5) further, because the “whole of the surrounding circumstances” is relevant to the reasonableness of a suspicion (Hyder at [15](8)), it may also be relevant to consider whether information ought reasonably to have been made available to a detaining officer by others involved in the detention of a person, even if not personally the detaining officer.
85 I apply this approach in assessing the evidence.
7. Lawfulness of Mr Guo’s initial detention – first period
86 Joanne Luu, an officer within the meaning of the Act, detained Mr Guo on 29 February 2012.
87 As the Commonwealth noted:
(a) Ms Luu sent a request to Metropolitan Remand & Reception Centre (where the Applicant was being held) on 13 February 2012, requesting the MRRC detain the Applicant on the basis that he was “known or reasonably suspected to be” an unlawful non-citizen;
(b) Ms Luu completed a “Compliance Client Interview” with the Applicant on 29 February 2012. In completing Part A of the form recording that interview (which is completed prior to taking a person into detention) Ms Luu ticked a box stating that she held a reasonable suspicion that the Applicant was an unlawful non-citizen and wrote “Client is UNC[.] Client is not case law affected”;
(c) Ms Luu completed Part B of the Client Compliance Interview form (which is completed after a person is detained) and again indicated that she held a reasonable suspicion the Applicant was an unlawful non-citizen by ticking the appropriate box; and
(d) it was not put to Ms Luu in cross-examination that she did not hold a suspicion that the Applicant was an unlawful non-citizen.
88 The proposition recorded at (b) above, that the Mr Guo was not “case law affected”, requires explanation. As noted, in Srey Gray J held that a notice for the purpose of regulation 2.8 is a notice under s 66 of the Act. In Srey, the consequence of this was that the applicant had not been validly notified of the refusal of his application for a permanent visa, the time for an application for review of that refusal had not begun to run, and the time for expiry of the applicant’s bridging visa also did not begin to run. The applicant thus still held a bridging visa and was not an unlawful non-citizen, so that continued detention of the applicant was unlawful.
89 It is apparent that when Ms Luu wrote “Client is not case law affected” she had in mind information which she and other officers had been provided by the Department as part of training and ongoing information provision to officers relating to the lawfulness of notifications given to people who had applied for a visa. This information included:
(1) A Departmental manual which included as part of Module 7 – Reviewing the lawfulness of notifications. Section 3.2 of this module refers to Srey and identifies the following:
Enduring Legal Principle/Practical outcome
If a notice of visa refusal (or other notices requiring inclusion of merits review information) does not include the correct merits review period required by legislation (e.g. because the statutory time period was found to be invalid by the court as in the case of Srey), then the notification is defective and any bridging visa granted in association with the substantive visa application will not cease (unless another ceasing event occurs such as the applicant departing Australia).
Clients affected
• Refusal of substantive visa between 1 September 1994 and 30 June 2000
• Note that the law was changed from 1 July 2000 onwards to correct the error in the deemed receipt timeframe.
• Notification letters sent by post from a place in Australia to an address in Australia
• Did not apply for merits review (or did but was out of time)
• If the client did apply for merits review within time, they would have suffered no practical detriment from the defective notification. Further, any associated Bridging Visas would have ceased 28 days after valid notification of the Tribunal’s decision.
• If the client did apply for merits review, but received a no jurisdiction decision because they were out of time, their bridging visa will have ceased 28 days after the notification of the no jurisdiction decision (assuming the tribunal notice was issued correctly). The client should still be notified correctly to ensure they have a fair opportunity at merits review and their application is ‘finally determined’.
(2) A National Case Law Guide which said:
NOTIFICATION CASES
Srey
• Notification of decision to refuse substantive visa between 1 September 1994 and 30 June 2000 sent by post within Australia, BV was granted in connection with that application, person has not been renotified after 1 July 2000, person did not apply to MRT or RRT (or was lodged but out of time), person had not departed Australia since SV was lodged, person subject to s501 from 1 July 1999 to 30 June 2000, or been subject to any other cancellation of SV (if they held BVA or BVB). Only relates to primary/delegate decisions not tribunal decisions.
(3) A Procedures Advice Manual referred to as PAM 3 which said:
Chan Ta Srey v MIMIA [2003] FCA 1292
The Court held that the notification was defective because it did not correctly state the time for applying for merits review. The notification stated that an application for review must be lodged within 28 days. The period of 28 days was calculated by relying on regulation 5.03, which provided that a document was taken to have been received 7 days after the date of the document. Regulation 5.03 (as it stood between l 994 and 2000) was found to be invalid in Minister for Immigration and Multicultural Affairs v Singh [2000] FCA 377.
Notifications may be “Srey-affected” if they were sent between 1 September 1994 and 30 June 2000. For further guidance on whether a case is “Srey-affected”, officers should refer to the flow chart at TRIM PCD2008/l l342.
…
42.2 Examples of “Srey-affected” cases
A notification will be “Srey-affected” if the person:
• was refused a substantive visa and
• was sent a notification letter within Australia between l September 1994 and 30 June 2000 and
• did not apply for merits review.
If they were granted a bridging visa in association with the substantive visa application, it remains in effect. They will also have an outstanding right to apply for merits review.
A notification will be “Srey-affected” if:
• the client:
was refused a substantive visa and
was sent a notification letter within Australia between 1 September 1994 and 30 June 2000 and
applied to the Migration Internal Review Office (MIRO) for review
and
• MIRO:
• affirmed the decision to refuse the substantive visa and
• sent a notification letter within Australia between 1 September 1994 and 1 June 1999
and
• the client did not apply to, or the decision has not been reviewed, by the IRT or the MRT.
In these circumstances, if the client was granted a bridging visa in association with the substantive visa application, it remains in effect. Further, as transitional provisions transferred to the MRT all MIRO cases which had not been notified by 31 May 1999, the client is taken to have an unfinalised merits review application before the MRT. Officers should refer the case to the MRT.
A notification will be “Srey-affected” if:
• the client was refused a substantive visa and
• the client was sent a notification letter by email and
• the notification letter does not separately state the time for applying for merits review but instead refers to the enclosed MRT/RRT brochure.
The above circumstances are also known as “Praveen-affected” cases.
(4) A Brief Assessment Tool known as a BAT which attached explanatory notes stating:
Has the client sought merits review?
If the client has sought merits review of the delegate notice being assessed within time, then no further assessment of the delegate notice is required. Instead officers should review the Comprehensive Assessment Tool to determine the circumstances where a matter should be referred to the tribunal for an assessment.
If the client has sought merits review, but was out of time, i.e. the tribunal's decision was a 'no jurisdiction' decision, the delegate notice should still be assessed. This is because the delegate notice could still defective [sic] due to case law, e.g. Pomare/SZOFE type defect.
Include brief details of checks done to ascertain whether the client has sought merits review in relation to that delegate decision, and if merits review has been sought within time, include the date of the tribunal notice if available.
Which case law do you consider against the Department’s notice?
If the client has not sought merits review of the Department’s decision within time, you will need to assess the delegate notice against Srey, Pomare/SZOFE and VEAN/Chand.
…
(5) The BAT form which stated:
For delegate notices – has the client sought merits review (within time)?
If yes, no further assessment required for delegate notice. Please assess the Tribunal notice.
90 Ms Luu said that:
My understanding of Srey affected cases, from the DIBP policy manual and compliance checklists (for example the BAT), is that they are cases where a person was given notification of a decision refusing a visa decision between 1 September 1994 and 30 June 2000. The notifications given in those cases were defective because the period stated in the notification for any appeal to be brought with respect to the visa decision was incorrect. My understanding at all times prior to 2014 … was that if the person made a valid merits review within the correct timeframe, then they were not Srey affected.
91 Ms Luu did not complete a BAT for Mr Guo before detaining him on 29 February 2012. Another officer, Rafiq Hasan, completed a BAT on 10 February 2012. The BAT included the following:
SREY Was the substantive visa refusal notice dated between 1/9/94 and 30/6/20000 and sent from a place in Australia to an address in Australia? ☒Yes ☐No (client not Srey affected) | ☐Affected
☒Not affected ☐Not applicable | Reasons: Client lodged valid merits review at AAR on 22/11/96 (CLF2005/54554) |
Is the person affected by the defective notification? ☐Yes ☒No ☐Further research required If ‘yes’ or ‘further research required’ box checked, then: please review Comprehensive Assessment Tool. If a second opinion is desirable at this stage, please contact the Compliance Helpdesk. |
92 Mr Hasan did not detain Mr Guo. Accordingly, his state of mind is immaterial unless relevant to the formation of Ms Luu’s state of mind. The Commonwealth submitted that “it was reasonable for Ms Luu to rely on the assessment of Mr Hasan”, citing in support Kostopoulos at [40] and [53]. These observations in Kostopoulos are a factual finding based on the particular circumstances of that case. Whether Ms Luu did rely on Mr Hasan’s BAT and whether it was reasonable for her to do so are issues of fact that need to be determined on the evidence in this case.
93 Ms Luu did not recall having considered Mr Hasan’s BAT at the time she detained Mr Guo. She inferred from a document she did complete on 29 February 2012 that she had considered Mr Hasan’s BAT before detaining Mr Guo. As the drawing of inferences is a matter for the Court, Ms Luu’s belief, based as it is on a document and not a recollection, is immaterial. It is necessary to assess the evidence of what Ms Luu did. The same approach must be taken to a facsimile sent by another officer to the officer in charge of the Burwood Local Court Cells on 10 February 2012. That is, Ms Luu did not say that she considered this document before detaining Mr Guo and any inference she did so must be based on evidence, not assumption.
94 Ms Luu herself sent a facsimile to the MRRC on 12 February 2012 which said:
I, Joanne Luu, am an officer for the purposes of the Migration Act 1958.
Mr GUO Qi Guang … is to be held in immigration detention under the Act as:
He/she is known or is reasonably suspected to be:
X An unlawful non-citizen; or
…
Under Section 5 of the Act, a person is in immigration detention if being held by or on behalf of an officer at a place specified in paragraph (b) of that definition, (“a place of immigration detention”)
As an officer for the purposes of the Act, I hereby request you to hold him/her on my behalf in/at State Correctional Facility, a place of immigration detention.
95 It is not apparent from the evidence why Ms Luu completed the facsimile in these terms. Nevertheless, from the face of the facsimile I infer that she did in fact suspect Mr Guo to be an unlawful non-citizen at the time she sent the facsimile.
96 Ms Luu received a telephone call on 29 February 2012 informing her that Mr Guo had been granted bail. She went to the MRRC and conducted an interview with Mr Guo, referred to as a Compliance Client Interview or CCI. Ms Luu filled out a standard form relating to this CCI which noted that Mr Guo claimed to hold a bridging visa and was awaiting the outcome of a spouse visa application. Against an entry “DETERMINATION - Reasonable suspicion established that a person is a UNC” Ms Luu has ticked the “Yes” box. Under “REASONS FOR DETERMINATION” Ms Luu has written:
Client is UNC
Client is not case law affected.
97 Ms Luu also ticked the “Yes” box against the question Case law Assessment completed”, the “No” box against the question “Person affected by case law?”, and entered Mr Hasan’s name next to this information. Ms Luu also ticked the box “I hold/continue to hold a reasonable suspicion that the person named is an unlawful non-citizen”.
98 I infer from this that Ms Luu considered the BAT which Mr Hasan prepared. I infer also that, as noted above, after the CCI she continued to suspect that Mr Guo was an unlawful non-citizen. Although she cannot recall doing so it was Ms Luu’s practice to telephone the relevant delegate of the Minister to discuss whether or not it was appropriate to detain the person. The delegate at the time was Roger Allen. Ms Luu believes she would have followed her practice in the present case. She also completed a transfer of custody form authorising a transfer of custody of Mr Guo from the MRRC to “an officer from Immigration for the purposes of the Act”. Mr Guo was transferred into Ms Luu’s custody and she and other officers arranged for Mr Guo to be taken to Villawood. Mr Guo was thus detained by Ms Luu for the time when he was transferred to her custody until at least the time she left him at Villawood.
99 The Commonwealth submitted:
In the circumstances, the relevant information available to Ms Luu provided objective justification for her suspicion that the Applicant was an unlawful non-citizen. The circumstances did not require her to make any further enquiry. In particular, no further enquiry into the accuracy of the case law assessment conducted by Mr Hasan was justified. Mr Hasan’s assessment concluding that the Applicant was not Srey affected specifically referred to the fact that the Applicant had commenced a valid application for merits review of the decision in 1996 to refuse his application for a class 815 PRC (Permanent) Entry Permit (the Permanent Visa).
This was consistent with Ms Luu’s understanding that a person who made a valid application for merits review within the applicable time limit was not “Srey affected” notwithstanding the fact that the letter notifying the person of a visa refusal decision may have contained a legal defect…. That understanding was based on policy and procedures provided by the Department to Ms Luu. Ms Luu is not a lawyer. She could not be expected to come to her own view on the effect of Srey; nor, given the Department’s clear policy position…could she be expected to seek further advice on the issue.
100 For Mr Guo it was submitted that:
(1) nothing in the evidence before the Court suggests that Ms Luu herself considered Mr Guo’s visa history;
(2) Ms Luu accepted that most, although not all, notification letters issued between about 1994 and 2000 were defective;
(3) despite this, Ms Luu did not check the first notification letter to Mr Guo to ascertain whether it was defective; and
(4) Ms Luu did not do so because she acted on the basis of the information from the Department, the effect of which was that if a person had applied for merits review within time, the notification letter need not be checked as, in short, “merits review cures all”.
101 This submission is a fair summary of the effect of Ms Luu’s evidence.
102 Two further submissions were made for Mr Guo in this regard. First, that Ms Luu ought reasonably to have checked the first notification letter for herself to ascertain whether it was defective, citing in support Okwume at [119]. Second, that the Department’s information on which Ms Luu relied was “so factually and legally unsound, particularly vis-à-vis the applicant’s circumstances, as to be untenable and such reliance upon it is unreasonable”.
103 The problem with the first submission is that the information provided by the Department effectively directed officers that they need not check the notification letter if the person had made a valid application for merits review within time. While some of this information referred expressly to the context of Srey, most of it was expressed more generally. In particular, nothing in the Departmental information directed an officer to consider the kind of visa held. Rather, the information directed officers that if a valid merits review application had been made, the notice of refusal of the visa application need not be checked; the person would not be affected by the defective notification. Read fairly and as a whole, officers were being informed (wrongly) by the Department that if a valid merits review application had been made, then it did not matter if the Minister’s notice of refusal of any visa application was invalid.
104 Ms Luu could not reasonably be expected, in the circumstances, to reach an independent view about the reliability of the Departmental information. She was not a lawyer. She was a compliance officer who worked in the field. All of her relevant training was by the Department. She had no reason to believe the Departmental information to be wrong. It was not obviously wrong on its face. On its face, it appeared to be a considered and good faith summary of relevant legal circumstances. Contrary to the Commonwealth’s case, however, I do not accept that the conclusions reached in this paragraph necessarily mean that Ms Luu’s suspicion that Mr Guo was an unlawful non-citizen was reasonable.
105 In particular, I do not accept that the observation in Ruddock v Taylor at [40] that “…what constitutes reasonable grounds for suspecting a person to be an unlawful non-citizen must be judged against what was known or reasonably capable of being known at the relevant time” means that an officer who detains a person relying on Departmental information necessarily holds a reasonable suspicion irrespective of the content of the information or any other surrounding circumstance. This was not an issue required to be considered in Ruddock v Taylor. To the contrary, I consider that the information itself and all surrounding circumstances are relevant to the question of reasonableness and, in particular, that information reasonably capable of being known to an officer is not to be assessed as if the officer operates in a vacuum. An officer is an officer under the Act. The classes of persons who are officers under the Act (as defined in s 5(1)) are confined to those who could reasonably be expected to have access to information capable of founding a rational suspicion that a person is an unlawful non-citizen. It necessarily follows that the surrounding circumstances relevant to assessing the objective reasonableness of an officer’s suspicion include the policies, practices and procedures that have been established to ensure that a detaining officer or officers have access to accurate and current information about a person’s status.
106 It is necessary to ask whether the suspicion was “justifiable upon objective examination of relevant material”, including that “which is discoverable by efforts of search and inquiry that are reasonable in the circumstances” (Goldie at [4]). Departmental information formed without “due inquiry” may not be capable of founding a reasonable suspicion (Goldie at [6]). Departmental information may also lack any rational justification “according to an objective criterion” (Hyder at 15(7)). If so, a suspicion formed on the basis of such information may itself not meet the standard of a reasonable suspicion even if it was objectively reasonable for the detaining officer to rely on the policy, advice or information. I also do not exclude the possibility that for an officer to rely on Departmental information may itself be unreasonable depending on the circumstances including if the officer knows or ought reasonably to know that the information is incorrect. As I have said, however, that is not the present case. Ms Luu’s reliance on the Departmental information was reasonable because that information dealt with a legal issue in terms which, on its face, appeared to be considered and in good faith.
107 This leaves the submission for Mr Guo that the Departmental information was so factually and legally unsound as to be untenable, making the suspicion that Ms Luu formed about Mr Guo being an unlawful non-citizen not a reasonable suspicion. The Commonwealth answered this submission as follows, it being common ground that on 22 November 1996 Mr Guo made a valid application for merits review of the decision to refuse him a permanent visa within the correct 28 day time period that applied to such a review:
(1) in most cases, the commencement of valid merits review proceedings will affect the question whether Srey applies;
(2) neither Srey, nor any other decided case applying Srey of which the Commonwealth is aware, involved a situation where the unsuccessful visa applicant had in fact made a valid application for merits review within the time allowed;
(3) in Srey Gray J said at [45] “[a] bridging visa is to be kept alive, to prevent the person from becoming an unlawful non-citizen, until it can be seen whether an application for review is made and, if such an application is made, until it has been determined”. Arguably, “this suggests that a bridging visa will cease upon determination of the merits review proceedings (or in this case, because of the different statutory context, the Temporary Visa ceased on notification where a valid application for review was made)”;
(4) while the reasoning in Srey at [49] that the “question whether there has been compliance with s 66(2)(d)(ii) cannot depend on what the recipient or intended recipient of the purported notification does or does not do, whether before or after the purported notification is sent or received. The question of compliance is apparent on the face of the document itself. If there has been non-compliance, in my view, there is not a notification for the purposes of the legislative scheme that depends upon satisfaction of the requirements of s 66” arguably suggests that “whether or not an unsuccessful visa applicant applies for merits review cannot affect the effectiveness of notification given under s 66”, this does not fit comfortably with, and may be contrary to, subsequent authority. In particular, in the Commonwealth’s words:
It is clear that the application of the principles in Project Blue Sky (i.e. the determination of the validity or effectiveness of an administrative action) [Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355] can take account of the specific consequences of the departure from the statutory requirement in a particular case, including whether the departure led to any injustice [citing, in support, Minister for Immigration and Citizenship v SZIZO [2009] HCA 37; (2009) 238 CLR 627 at [26] and [35]-[36]; Maritime Union of Australia v Minister for Infrastructure and Regional Development [2015] FCAFC 187 at [66(6)] and [76]; SZOFE v Minister for Immigration and Citizenship [2010] FCAFC 79; (2010) 185 FCR 129 at [30] and [65]-[67]] …; and
(5) accordingly, the “effectiveness of notification under s 66 (as well as any subsequent exercise of jurisdiction by a merits review tribunal) can depend on the nature and consequence of any departures from the formal requirements of s 66.” Thus, it is “certainly arguable that the decision in Srey is distinguishable where an Applicant in fact made a valid application for merits review within time and, as a result, suffered no adverse consequences”.
108 In respect of proposition (1) above, in Srey the applicant held a bridging visa subject to cl. 010.511(b)(iii) of Schedule 2 to the Migration Regulations 1994 (Cth) (the 1994 Regulations). As such, the bridging visa would have ceased to exist 28 days after notification of the outcome of the review by the Tribunal, had such an application been made (the period in cl. 010.511(b)(iii) of Schedule 2 is now 35 days). It follows that, in the case of a bridging visa subject to cl. 010.511(b) of Schedule 2 to the 1994 Regulations, the question whether a valid (that is, within time) application for review of the Minister’s decision to refuse a permanent visa was made (resulting in the Tribunal deciding to remit the application to the Minister for reconsideration) was relevant because the bridging visa would no longer be in force after expiry of the specified period from the date of notification of the Tribunal’s decision, irrespective of any defect in the notice of the Minister’s decision.
109 Mr Guo, however, did not hold a bridging visa subject to the operation of cl. 010.511 of the 1994 Regulations. He held a different kind of bridging visa, a Class 437 temporary entry permit which, as explained above, remained in force until Mr Guo had been notified of the Minister’s decision “in accordance with regulation 2.8” (item 437.52(a) of Schedule 3 to the 1993 Regulations). By reason of Srey, a notice in accordance with regulation 2.8 was a notice in accordance with s 66 of the Act. It was known to the Department generally, including to Ms Luu, that most notices of visa refusal decisions issued between 1 September 1994 and 30 June 2000 were invalid because they did not correctly identify the period within which an application for review could be made. The notice to Mr Guo, of 25 October 1996, was thus known by Ms Luu to be likely to be invalid. The only reason she concluded that this did not matter, it is apparent, is her reliance on the Departmental information. As I have noted, although part of this information referred to the specific context of Srey, most of the information (particularly the BAT which was the initial assessment tool officers were required to use) was expressed in general terms, as if all bridging visas were subject to cl. 010.511 of the 1994 Regulations.
110 Section 37 of the Act provides:
There are classes of temporary visas, to be known as bridging visas, to be granted under Subdivision AF.
111 The 1994 Regulations identify various kinds of bridging visas in Div 2.5 of Pt 2. In addition to this, any person responsible for preparing information to be used by officers to detain people as known or reasonably suspected unlawful non-citizens must or ought reasonably to have known that the legislation had been amended from time to time with the consequence that some kinds of visas would be subject to statutory provisions other than those in the 1994 Regulation.
112 In these circumstances, proposition (1) may or may not be accurate. It may be accepted that in the case of a bridging visa subject to cl. 010.511(b)(iii) of Schedule 2 to the 1994 Regulations, a defective Ministerial notice is immaterial if the person made a valid application for merits review and the Tribunal decided not to remit the application to the Minister. In the case of a temporary entry permit, however, there is no provision equivalent to cl. 010.511(b)(iii) of Schedule 2 to the 1994 Regulations; the operative provision (item 437.52(a) of Schedule 3 to the 1993 Regulations) bringing the temporary visa to an end is engaged only by a valid Ministerial notification letter. The number of cases in each category is unknown. Given that the Commonwealth bears the onus of proof, I cannot be satisfied that in most cases, the commencement of valid merits review proceedings will affect the question whether Srey applies. In cases of a bridging visa to which cl. 010.511(b)(iii) of Schedule 2 to the 1994 Regulations applies, the existence of a valid merits review application and a Tribunal decision other than to remit the matter to the Minister will render immaterial a defective Ministerial notification, but whether that is “most” or “some” cases I do not know.
113 In respect of proposition (2), it may be accepted that the Commonwealth was unable to identify any case in which an unsuccessful visa applicant had in fact made a valid application for merits review within the time allowed. It does not seem to me that this carries material weight. Srey, in terms, was confined to bridging visas subject to particular aspects of the statutory scheme which expressly provided for the bridging visa to cease within a specified time period after notification of the Tribunal’s decision. There is a gulf between that circumstance and the Departmental information to the effect that an officer generally need not consider the Minister’s notice if a valid application for review has been made.
114 In respect of proposition (3), Srey provides no support for the content of the Departmental information. The observation at [45] relates to bridging visas which are subject to a specific statutory scheme. Those responsible for preparing Departmental information to be relied upon by an officer exercising powers of detention must be taken to have known that bridging visas may have been issued at different times and thus under different statutory provisions, and if they did not know this, such lack of knowledge was unreasonable in the circumstances.
115 Further, there is no evidence from which it could be inferred that those preparing the Departmental information placed weight on [45] of Srey. Indeed, there is no evidence at all indicating who prepared the Departmental information, when it was prepared, or how it was prepared. I do not know the qualifications or experience of the people who prepared the information. I do not know if they obtained legal advice. I do not know if the information was subject to any form of review or updating. These matters are relevant given that it is the Commonwealth which bears the onus of proving that the suspicion of Ms Luu was objectively reasonable.
116 In respect of proposition (4), the same points can be made. There is no evidence that the Departmental information was prepared having regard to the reasoning in Project Blue Sky, SZIZO, Maritime Union of Australia, or SZOFE. There is no evidence that anyone in the Department turned their mind to the question whether Srey was arguably inconsistent with these decisions. In any event, I see no inconsistency. Gray J applied Project Blue Sky at [42]. Project Blue Sky confirms the primacy of legislative intention to the question of the consequence of breach of a statutory requirement. SZOFE at [30] and [65]-[67], SZIZO at [26] and [35]-[36] and Maritime Union of Australia at [66](6) and [76] say nothing different. They each involved an exercise in statutory construction to ascertain if the legislature intended a breach of a statutory requirement to invalidate the administrative action. The consequences of breach, in the present context, were relevant only to the extent that they are capable of assisting in discerning legislative intention. They were not relevant to any consideration of potential injustice by reason of the breach, at large and uninformed by the purposes of the statutory provision. Consistently with this, Project Blue Sky could be relevant only to the question whether a failure to stipulate the correct time period for the making of a review application invalidated the Ministerial notice. In Srey, Gray J held that a notice stating the incorrect time period for review was no notice at all. Nothing in the reasoning in Srey suggested that the making of a merits review application within time would have any general curative effect on defective Ministerial notifications.
117 There is no evidence about how the Department got from the outcome in Srey (a notice stating the incorrect time period is no notice at all) to the content of the information it provided to officers (if a merits review application has been made within time the person is not Srey affected and, more importantly, that the office need not check the notice to see if it is valid). The problem is in the failure of the information to disclose that the outcomes identified are a result of specific statutory provisions which apply to some bridging visas (those subject to cl. 010.511(b)(iii) of Schedule 2 to the 1994 Regulations) but not to a temporary entry permit, such as that held by Mr Guo, which were subject to a different statutory regime by the express terms of which it was a valid Ministerial notification alone which brought the temporary visa to an end.
118 Even if it can be said that it is arguable that the fact of the making of a valid application for merits review meant Srey was distinguishable, there is no suggestion that the Department applied any such process of reasoning in preparing the information. I also do not accept that this proposition is arguable. It involves a misunderstanding of Project Blue Sky and confuses the consequence of the failure to stipulate the correct time for a merits review application with the status of the visa Mr Guo held. In working out whether the legislature intended a notice which failed to identify the correct time period for a merits review application to be a notice within the meaning of s 66 of the Act, whether the person made a merits review application within time can never be material. This is because the issue is one of ascertaining whether the legislative purpose is to invalidate an act done in breach of the particular statutory requirement. Legislative purpose cannot be identified by what might have occurred in an individual case. It is to be discerned from the text and context of the statute, which can include considerations such as the practical consequences of breach of the requirement. As such, the decision in Srey, that a notice which fails to state the correct time period for review is no notice at all, could never have been distinguished by a consideration such as a particular applicant in fact having made a merits review application within time. Further, the lack of any adverse consequence to Mr Guo (because he availed himself of the merits review within time) is immaterial given that the statutory provisions regulating the duration of his visa made clear that his visa continued until expiry of the specified period after he had received a Ministerial notice refusing his permanent visa application. The provisions applying to Mr Guo’s visa made no mention of merits review or a decision by the Tribunal or notification of a decision by the Tribunal.
119 This aspect of the case should be resolved on the basis of the Commonwealth’s onus of proof. It has not adduced evidence from which any inference can be drawn about:
(1) who prepared the Departmental information on which Ms Luu relied;
(2) the qualifications or experience of the persons who prepared the information;
(3) how the information was prepared;
(4) whether the information was subject to internal or external review of any kind, be it legal review or otherwise; or
(5) whether the information was updated and, if so, how, by whom, and on what basis.
120 This is in circumstances where the information on which Ms Luu relied was wrong and:
(1) there is no evidence about how the person(s) who prepared the information got from the reasoning in Srey to the proposition that an officer need not check any Ministerial notification to see if it was defective if an application for review had been made within time (a proposition broader than cl. 010.511(b)(iii) of Schedule 2 to the 1994 Regulations, it might be noted);
(2) given the nature of the information it must or reasonably should have been known to that person or those persons that the information would be used by officers for the purpose of determining whether they knew or suspected that a person was an unlawful non-citizen and, as a result, detaining that person;
(3) as a result, it would be unreasonable for the person or persons preparing the information not to take reasonable care to ensure that the information was accurate;
(4) there is insufficient evidence from which it might properly be inferred that such reasonable care was taken, the only evidence being the terms of the information itself;
(5) however, such person(s) knew or ought reasonably to have known that:
(a) there are various classes of bridging visas subject to different statutory provisions; and
(b) it was necessary to consider the particular provisions to determine when such a visa might cease;
(c) Srey involved a bridging visa subject to cl. 010.511(b) of Schedule 2 to the 1994 Regulations;
(d) Srey itself did not involve a person who had made a merits review application and Srey does not suggest that an officer need not check the Ministerial notification to see if it was defective;
(e) a bridging visa subject to cl. 010.511(b) of Schedule 2 to the 1994 Regulations will have ceased despite a defective Ministerial notification if a merits review application had been made within time and the result was not to remit the matter to the Minister for reconsideration; and
(f) this was a result of the application of statutory provisions applying to such a bridging visa and not to other kinds of visas which were subject to their own statutory provisions; and
(6) further, the information is not only wrong insofar as it purported to apply to bridging visas generally, but there is no case or statutory provision providing a rational foundation for the view that the making of a merits review application meant that every form of such a visa ceased as a result of a valid application for merits review.
121 Given this, I do not accept that the Departmental information was capable of founding a reasonable suspicion on the part of Ms Luu (or any other officer) that Mr Guo was an unlawful non-citizen. The information purported to apply to Mr Guo’s circumstances when, on any rational view, it could not apply to his circumstances. Accordingly, the Department had not ensured that due inquiry was made about the accuracy of the information when it ought reasonably to have done so given that the Department intended the information to be used for the purpose of officers deciding whether or not to exercise powers of detention. It is not that the Department must ensure that it never makes an error of law or of fact in detaining a person (although this must be its aim given that the deprivation of liberty is involved). It is that the evidence in this case does not satisfy me that there was any rational foundation for the information given to officers and relied upon by Ms Luu to detain Mr Guo to the extent that information purported to apply to persons other than those who held a bridging visa subject to cl. 010.511(b) of Schedule 2 to the 1994 Regulations as in Srey. Any consideration of the statutory provisions which meant that a person was not “Srey affected” because the person had made a valid merits review application would have disclosed that this resulted from particular provisions applying only to bridging visas under the 1994 Regulation. An obvious and essential inquiry, which had to be made before information purporting to apply generally was disseminated, was whether other bridging visas were subject to equivalent provisions. If they were not, the only reasonable course was to confine the information to bridging visas subject to cl. 010.511(b) of Schedule 2 to the 1994 Regulations or equivalent provisions. It is not apparent that any such inquiry was made.
122 Given these conclusions, and the evidence that Mr Guo’s second detention was based on the same information, it follows that the Commonwealth has not discharged its onus of proof of lawful justification for Mr Guo’s detention at any time. For the entirety of the periods claimed, Mr Guo was falsely imprisoned on the basis of suspicions that he was an unlawful non-citizen which do not meet the statutory requirement of a reasonable suspicion as provided for in s 189(1) of the Act.
123 It is only if I am incorrect in these conclusions that it is necessary to consider Mr Guo’s continuing detention during the first period and his second detention, both initial and continuing.
124 Further, if I am incorrect in these conclusions then I should confirm that I am satisfied that Ms Luu did suspect that Mr Guo was an unlawful non-citizen. She believed her suspicion was reasonable because she reached it relying on the Departmental information. It was reasonable for her to rely on that information and to apply it to Mr Guo without herself making any further inquiries.
8. Lawfulness of Mr Guo’s continuing detention – first period
125 Mr Guo continued to be detained in Villawood until 26 September 2014. The Commonwealth contended that Mr Guo’s continuing detention was lawful on four separate bases. However, for the reasons given above, each basis depends on the Departmental information discussed above which, for the reasons given, was incapable of founding the requisite reasonable suspicion on the part of any officer. The remainder of this section of these reasons proceeds on the assumption that this conclusion is incorrect.
126 The Commonwealth’s first contention is that Ms Luu held the required reasonable suspicion at the time she detained Mr Guo and there is no reason to infer that she did not continue to do so. As submitted for Mr Guo, one problem with this submission is that there is no reason to infer from the evidence that Ms Luu continued to have any state of mind about Mr Guo at all after she left him at Villawood on 29 February 2012. The case is not like Ruddock v Taylor in which it is apparent that the evidence permitted the drawing of an inference about the continuing state of mind of the detaining officers (see at [49]-[51]). The Commonwealth relied in particular on the statement at [51] in Ruddock v Taylor that:
It also follows from that fact, and the reasons given earlier, that the respondent's detention was lawful and required by the Act. Nothing was said to have occurred during either period of detention that would affect the conclusions that, until an order was made quashing the relevant decision to cancel the respondent's visa, those who detained the respondent reasonably suspected that he was an unlawful non-citizen, and that accordingly, his detention was lawful and required by the Act.
127 The reasons given earlier in Ruddock v Taylor, as referred to in [51], include the fact recorded at [49] that:
At the trial of these proceedings, those officers who had been responsible for effecting the respondent’s detention gave unchallenged evidence of the steps each had taken before detaining the respondent. Each officer had been provided with what, on its face, appeared to be a regular and effective decision of the Minister to cancel the respondent’s visa. Each officer checked whether the respondent held any other visa. Upon finding that he did not, the officer concerned detained the respondent.
128 Read together, these parts of the reasons in Ruddock v Taylor do not support any principle of the kind the Commonwealth proposes. Ms Luu detained Mr Guo on 29 February 2012. Ms Luu deposed to the fact that on that date she escorted Mr Guo to the Villawood Immigration Detention Centre arriving at 11.55pm. Ms Luu said that, thereafter, she “had no further involvement in Mr Guo’s immigration detention until on or about 3 December 2014”. This evidence is contrary to the Commonwealth’s submission that Ms Luu continued to hold the required suspicion about Mr Guo throughout the first period of his detention. Indeed, this evidence indicates that Ms Luu did not hold any state of mind about Mr Guo one way or another after 11.55pm on 29 February 2012. While I might be prepared to infer that her state of mind subsisted for some short period after that time, this gives rise to another problem with the Commonwealth’s first proposition. It is that, given this evidence from Ms Luu, it is apparent that she did not keep Mr Guo in immigration detention after 11.55pm on 29 February 2012. Her state of mind after this time, accordingly, is immaterial, even if I inferred it did subsist for some time after Ms Luu ceased to be involved in Mr Guo’s detention.
129 The Commonwealth’s second contention is that another officer, Peter Bright, held the required reasonable suspicion to make Mr Guo’s continued detention throughout the first period lawful.
130 The Commonwealth’s procedures required a detention review manger (or DRM) to review Mr Guo’s detention within 48 hours of him being detained because he was not identified as a person to be released within 28 days. Mr Bright was the DRM who, on 29 February 2012, received an email informing him that Mr Guo had been detained. Mr Bright completed a form known as an MCP7 about Mr Guo on 1 March 2012. Mr Bright does not recall completing this form but gave evidence of his practice for completion of such forms. Mr Bright also gave evidence of his understanding of persons who were, in the Department’s language, “Srey affected”, in terms consistent with those of Ms Luu. It is apparent that Mr Bright’s understanding reflected the Departmental information which I have characterised above as incapable of founding a reasonable suspicion within the meaning of s 189(1), despite it being reasonable for an individual officer in the position of Ms Luu to rely upon that information.
131 Apart from this, the MCP7 (Phase 1) which Mr Bright completed on 1 March 2012 records his conclusion that there is “sufficient objective evidence to know or hold a reasonable suspicion that the client is an unlawful non-citizen”. An earlier statement on the form, however, records “[t]he 815 refusal appears to be a s 501 and is not SREY affected although this requires review”.
132 Mr Bright completed another MCP7 (Phase 2) on 15 March 2012. In this form Mr Bright recorded that Mr Guo is not “case law affected” and, based on this and his immigration history, the “DRM finds that reasonable suspicion is therefore held that he is an unlawful non-citizen”. In reaching this conclusion, Mr Bright said he did not further turn his mind to the issue of Mr Guo being “Srey affected”, despite the statement in the MCP7 that “this requires review”. Mr Bright could not recall why he said that “this requires review” given that his clear understanding at the time was that Mr Guo was not “Srey affected”. Otherwise Mr Bright’s evidence included these matters:
(1) he understood at the time that if a person had made a valid application for merits review of the refusal of a visa application, that “cured any of the Srey-related defects”;
(2) in the absence of a valid application for review, however, the person would continue to hold a bridging visa, and would need to be released from detention;
(3) if a person did not hold a bridging visa, “we would have sought legal related advice”; and
(4) he could not recall if Mr Guo held a bridging visa.
133 As noted, a DRM is responsible for reviewing the detention of a person. The role of DRM was established as part of a set of initiatives intended to mitigate the risk of a person being unlawfully detained. According to Mr Bright, the review to be conducted by a DRM is meant to be “independent”. By this I take it that the DRM is to reach his or her own view, based on Departmental records, of the detained person’s immigration status and is not meant to rely on a conclusion of another officer. A DRM has access to the person’s file in the Department’s Compliance, Case Management and Detention System portal (the CCMDS Portal), as well as the Total Records and Information Management System (TRIMS) and the Integrated Client Service Environment (ICSE). By these means the DRM has access to all relevant electronic records and can also require access to be given to a physical file about a detained person. A DRM can also refer a matter internally for legal advice if the DRM’s case law assessment raised any doubt about the decision to detain the person. A DRM is thus not in the same position as a compliance officer such as Ms Luu. What is reasonable for Ms Luu is not necessarily reasonable for a DRM who has a different responsibility within the Department’s systems.
134 If I am incorrect in my conclusions about the Departmental information, then I nevertheless conclude that the Commonwealth has not established that Mr Bright held a reasonable suspicion about Mr Guo’s status. Unlike Ms Luu, Mr Bright had a specific responsibility to conduct an independent and as fulsome a review of Mr Guo’s records as the circumstances required in order to satisfy himself that Mr Guo’s detention was lawful. Despite Mr Bright’s clear understanding of when a person was “Srey affected” he expressly noted that Mr Guo’s status as Srey affected or not required review. It is not possible to know why Mr Bright did so but the fact is he did and no such review was conducted. This needs to be weighed along with some other facts. For one thing, a person in Mr Bright’s position could reasonably be expected to know that there are different kinds of bridging visas, including visas granted under earlier versions of the statutory scheme. For another, Mr Bright believed that if a person did not hold a bridging visa then legal advice would be sought. Mr Bright also had the capacity to obtain legal advice if he had any doubt about Mr Guo’s status. The forms completed by Mr Bright refer to Mr Guo as having held a “BV E” (which I take to mean a class of bridging visa) which had “long ceased” (the latter reference is in the Phase 2 MCP7). It is not apparent why this did not cause Mr Bright to consider obtaining legal advice about Mr Guo’s status. All of these facts must be taken together in assessing whether the Commonwealth has established that Mr Bright’s suspicion that Mr Guo was an unlawful non-citizen was reasonable.
135 It is not apparent why Mr Bright did not conduct a further review of Mr Guo being “Srey affected” or not when Mr Bright had identified that this was “required”, why Mr Bright did not consider obtaining legal advice if he believed Mr Guo did not hold a bridging visa when detained, or why on his review of the files Mr Bright either did not notice or did not realise the potential significance of the fact that Mr Guo had been granted a temporary entry permit on 1 July 1994 which was before the commencement of the 1994 Regulations on 1 September 1994 and ought reasonably to have put Mr Bright (given his position and responsibilities) on notice that Mr Guo’s position may need to be considered under other statutory provisions. As a result, I am not satisfied that the Commonwealth has established that it is more probable than not that Mr Bright’s suspicion was objectively reasonable.
136 I do not accept the Commonwealth’s submissions to the contrary. In particular:
(1) there is no basis in the evidence to infer that Mr Bright did not mean what he said on the Phase 1 MCP7 that whether Mr Guo was Srey affected required further review;
(2) as noted, it is not apparent whether or not Mr Bright’s review disclosed that Mr Guo held a temporary entry permit from before the commencement of the 1994 Regulations (but, given his responsibilities, his review ought reasonably to have done so) or, if this was disclosed, why the potential significance of this fact did not occur to Mr Bright (or, indeed, that the potential significance of this fact did not occur to Mr Bright, as it is one possible explanation of the requirement for further review which Mr Bright noted on the Phase 1 MCP7); and
(3) Mr Bright’s function, on his own evidence, was to conduct an independent review of the available materials. As such, he could not have reasonably relied on the conclusions reached by Mr Hasan, Ms Luu or any other officer. Moreover, there is insufficient evidence to infer that he did rely on these conclusions in any event.
137 It is important to appreciate that, on his own evidence, Mr Bright’s reviews were the principal mechanism by which the Commonwealth attempted to ensure that it did not unlawfully detain a person if the person would not be released within 28 days. Mr Bright, as DRM, was thus fulfilling a role of critical significance in relation to people likely to be detained for a lengthy period. There were three DRMs for New South Wales, reviewing the status of all detained persons. Persons occupying such a position ought reasonably to have extensive knowledge of the operation of the legislation, sufficient for them to know when legal advice might be required. It was the DRM’s review which was meant to be independent, to be based on all available material, and to be the subject of legal advice in the event of any doubt. It is apparent from the evidence that if at any time during detention an officer had any concern about the lawfulness of a person’s detention, the matter would be referred to a DRM for further review. The DRM’s function, accordingly, was an essential protection against unlawful detention. Mr Bright knew this. His understanding of the Departmental information, which was the same as Ms Luu’s, does not explain any of the matters identified above which remain unknown on his evidence. As a result, irrespective of the reasonableness of Mr Bright’s reliance on the Departmental information, the suspicion he held has not been established to be a reasonable suspicion within the meaning of s 189(1) of the Act.
138 The Commonwealth’s third contention is that two senior officers conducted further reviews of Mr Guo’s status (Deidre Russack on 17 August 2012 and Sashika Ranasinghe on 27 March 2013). In each report these reviews said:
No new information has been provided to trigger a referral to a detention review manager. The Department reasonably suspects that Mr Guo is a non-citizen.
139 It is apparent from these statements that these reviews assumed that the review of Mr Bright, as DRM, was correct unless and until some new information caused Mr Guo’s status to again be referred to a DRM. This is so despite Ms Russack’s affidavit evidence that the reviewing officer, according to usual practice, should have considered the whole of Mr Guo’s immigration history. In her oral evidence Ms Russack confirmed, to the contrary, that the reviewing officers were concerned with anything which might “change their view” that Mr Guo remained an unlawful non-citizen. As such, these reviews could rise no higher than that of Mr Bright. Apart from this, and as was submitted for Mr Guo, Ms Russack was merely approving information provided to her by another officer. Ms Russack was not bringing to bear her own views. Ms Russack:
a) was unable to specify what was considered by the officer who prepared the report (for example, Mr Guo’s immigration history or the two MCP7 forms completed by Mr Bright);
b) confirmed that it had not occurred to her that Mr Guo may be Srey-affected;
c) confirmed that it had not occurred to her that the first notification letter may be defective; and
d) confirmed that she did not consider whether Mr Guo’s transitional (temporary) visa might not have expired because the first notification letter was defective.
140 Ms Ranasinghe did not give evidence and thus there is no evidence explaining what she considered before signing the review on 27 March 2013. For the reason that I infer that this review could rise no higher than that of Mr Bright and that Ms Ranasinghe was merely approving the opinion of another officer rather than forming her own state of mind about Mr Guo, I do not accept that this evidence establishes the existence of a reasonable suspicion rendering Mr Guo’s continued detention lawful.
141 The Commonwealth also relied on various reports to the Ombudsman which were required to be submitted throughout Mr Guo’s detention. It is true that these reports do not indicate any change which made any officer re-consider Mr Guo’s status. This is the problem. The advice the Department gave Ms Luu which caused Mr Guo’s detention was not objectively reasonable. Mr Bright’s review of Mr Guo’s status was not reasonable not only because he relied on the same advice but also because his evidence leaves open a number of important questions about what Mr Bright did, knew, or did not know or do. As to the reports to the Ombudsman, as was submitted for Mr Guo, those reports:
shed no light on what processes were adopted for the purpose of ascertaining whether officers who prepared those reports held the requisite state of mind throughout the First Period. Those officers were not called as witnesses in these proceedings, and Ms Russack was unable to describe what process she followed in approving the 20 May and 26 July 2013 reports
142 As the submissions for Mr Guo also noted, in her oral evidence Ms Russack said:
It’s not Ms Rigadon’s job to hold reasonable suspicion nor was it mine.
143 I think this evidence should be taken at face value. At best, the reviews conducted after that of Mr Bright were intended to do no more than identify any matter which might have changed Mr Guo’s status. They were not intended to ensure that any officer (apart from the DMR who conducted the review) held any particular state of mind. If there had been some material change, it is apparent that the matter would be referred back to the DMR for a further review. This did not occur in Mr Guo’s case because there was no apparent change in his status. The time for the error to be noticed, on Mr Guo’s detention by Ms Luu and the DMR review by Mr Bright, had passed. This reinforces the conclusions I have reached above about the important safeguard provided by the DMR review, which also supports the conclusions I have reached about the insufficiency of Mr Bright’s evidence to discharge the Commonwealth’s onus of proof.
144 Mr Guo’s status was also reviewed by case officers throughout his detention every 28 days or so. Again, however, these reviews were at a lower level than that of the DMR. They were not required to be independent reviews of all available information. I accept the submissions for Mr Guo as follows about these reports prepared by two officers:
Mr Joshi and Ms Reyes, who both continue to work at the Department, were not called as witnesses in the proceedings. In those circumstances, it should be inferred that nothing that they would have said would have assisted the Commonwealth’s case. Those officers not having been called and their evidence not having been tested, it would not be appropriate to ascribe to them the state of mind described in s 189(1).
145 As to the other officer, Mr Campbell, his affidavit explained that the purpose of his reviews was to consider the detainee’s care and the “lawfulness of the detainee’s continued detention and whether a referral to a …DRM is required”. From this I infer that it was no part of Mr Campbell’s role (or that of any other case manager) to decide if he held a reasonable suspicion that Mr Guo was an unlawful non-citizen. Rather, if anything came to Mr Campbell’s notice that might materially affect Mr Guo’s status, Mr Campbell’s role was to refer the matter to a DRM. Mr Campbell also said that had he known the notice to Mr Guo of the refusal of his application for a permanent visa was defective, he would have contacted a DRM. This, of course, is inconsistent with the Departmental view that any defect in this notice did not matter because Mr Guo had applied for merits review of the refusal within time. Mr Campbell could not recall what research he did in respect of Mr Guo, but did not believe it included consideration of the letter of refusal of his permanent visa application. Mr Campbell would usually review his own work from scratch on various occasions but it is apparent in the present case that if this occurred it did not include consideration of the validity of the notice of refusal of Mr Guo’s application for a permanent visa. Given Mr Campbell’s limited role I do not consider it unreasonable for Mr Campbell not to have done so. If, however, Mr Campbell was intended to satisfy himself on an ongoing basis that Mr Guo was reasonably suspected to be an unlawful non-citizen (which I do not consider to be the case) then it was necessary for Mr Campbell to have examined the notification letter because Mr Campbell knew that a defective notice might mean Mr Guo was not an unlawful non-citizen. Either way, Mr Campbell could not have held a reasonable suspicion that Mr Guo was an unlawful non-citizen in the circumstances.
146 For these reasons the Commonwealth has not established that Mr Guo’s detention at any time during the first period was lawful based on a detaining officer of Mr Guo holding a reasonable suspicion that Mr Guo was an unlawful non-citizen. Further, it seems clear to me that the relevant detaining officer is the DRM who alone has the specific responsibility of reviewing all information and reaching an independent view, with the benefit of legal advice if necessary, as to whether the person is known or reasonably suspected to be an unlawful non-citizen.
9. The alternative period between 10 August and 26 September 2014
147 My conclusions above mean that it is not necessary to consider the alternative case based on the period from 10 August to 26 September 2014, being the period between Mr Guo commencing proceedings in the High Court seeking a writ of habeas corpus based on his unlawful detention and his release from the first period of detention. Despite this, my conclusions about this period of detention, separate from those above which apply to the entire first period of detention, are set out below.
148 On 12 August 2014 Mr Guo filed an application in the High Court seeking, amongst other things, the writ of habeas corpus. The application included grounds which identified that Mr Guo had been granted a Class 437 temporary entry permit on 1 July 1994 and that by operation of cl 437.52(a) of Sch 3 to the 1993 Regulations this permit continued “until a decision is made on the [permanent visa] application, and [Mr Guo] has been notified in accordance with regulation 2.8”. The application was accompanied by written submissions which explained the relevant facts, the operation of the 1993 Regulations, the Transitional Regulations, the defect in the notice to Mr Guo of 25 October 1996 having regard to Srey, and the continuation of Mr Guo’s temporary entry permit until he received notice in accordance with reg 2.8. In other words, every relevant fact and statutory provision was identified by reason of which it was contended that Mr Guo continued to hold the temporary entry permit and thus was not an unlawful non-citizen.
149 Mr Guo’s application in the High Court and written submissions were served on 14 August 2014. Peter Dwyer, the Director/Principal Legal Officer of the Department’s then Enforcement and Citizenship Litigation Section, recognised that the contention was a “serious” one and set about obtaining external legal advice, first from one set of solicitors and subsequently (due to prior involvement) from the Australian Government Solicitor. It took until 26 September 2014 for the advice from senior and junior counsel to be received (not, it might be added by reason of any delay on the part of counsel). By 6.00pm on the day counsel’s advice was received, Mr Guo had been released from detention.
150 The Commonwealth, in respect of this part of the case, focused on why it was reasonable for the Department to have taken six weeks to obtain the advice from counsel. This focus is misplaced. The issue is whether the officer(s) detaining Mr Guo could have continued to hold a reasonable suspicion that Mr Guo was an unlawful non-citizen. In the face of the application and written submissions, no suspicion held by any officer could have been reasonable. Assume, as I infer to be the case, that the detaining officer who held the relevant suspicion was Mr Bright. I infer this because he was the DRM responsible for deciding if it was known or reasonably suspected that Mr Guo was an unlawful non-citizen. As concluded above, I accept that Mr Bright suspected Mr Guo was an unlawful non-citizen but have rejected the Commonwealth’s case that this was a reasonable suspicion on various grounds. For present purposes, assume this is incorrect and Mr Bright’s suspicion was reasonable and may be inferred to have subsisted until 14 August 2014. There is no evidence that Mr Bright knew about the application to the High Court and accompanying written submissions. Does this mean that the Commonwealth can contend that Mr Bright continued to hold the assumed reasonable suspicion? I would answer this question “no”. This is because it is a matter for the Department to implement policies, procedures and practices which are capable of founding and sustaining the existence of the requisite knowledge or reasonable suspicion on the part of the detaining officer or officers. If the Department has not developed or implemented such policies, procedures and practices then it will not be in a position to discharge its onus of proving lawful justification for a person’s detention. It follows that, if Mr Bright did hold the required reasonable suspicion (a fact I assume for this purpose), then the suspicion would not continue to be reasonable merely because the Department did not have in place the policies, procedures and practices necessary to bring Mr Bright’s attention to relevant material such as the High Court application. To conclude otherwise would be to fail to appreciate that while the holding of a suspicion involves a subjective state of mind, the quality of the suspicion as reasonable or not is to be determined objectively. As the Commonwealth bears the onus of proving that detention is lawful, as I have said, it is for the Commonwealth to establish such policies, procedures and practices as it sees fit to ensure it can discharge the onus if required to do so.
151 It is for this reason that, as I have said, the Commonwealth’s submissions about the impracticality or inconvenience of it having to prove that, at every moment, the detaining officer or officers held the required suspicion and that the suspicion was reasonable, are unpersuasive. In the present case, it is apparent that while there are in place some policies, procedures and practices directed at ensuring only unlawful non-citizens are detained, the evidence leaves open many critical matters. For example, the Commonwealth has not been able to identify documents which clearly specify which officer is in fact responsible for holding the relevant state of mind in respect of Mr Guo’s continued detention. On the evidence, for the reasons given, I would infer that it is the DRM (in this case, Mr Bright) but the lack of clarity in the policies, procedures and practices of the Department is manifest. If I am correct and Mr Bright was the relevant officer, then the fact that there is no evidence of him being notified of the application to the High Court to see if he continued to hold a suspicion undermines the potential status of any such suspicion as reasonable. These are all matters within the Commonwealth’s control so no plea about the difficulty of proof on the Commonwealth’s part carries weight.
152 To return to the immediate issue, as discussed, the issue is not whether it was reasonable for the Department to take six weeks to obtain legal advice. On my preferred view, the issue is whether it was reasonable for Mr Bright, as the relevant detaining officer, to continue to hold a reasonable suspicion that Mr Guo was an unlawful non-citizen in the face of the information in the application to the High Court and accompanying submissions. On the most generous view to the Commonwealth, the issue is whether it was reasonable for any officer involved in detaining Mr Guo to continue to hold a reasonable suspicion that Mr Guo was an unlawful non-citizen in the face of the information in the application to the High Court and accompanying submissions. In both cases, the answer is “no”. Insofar as Mr Bright is concerned, the Commonwealth has not established that the Department had in place a system to ensure Mr Bright became aware of the information in the application to the High Court and accompanying submissions. Any continuing suspicion on Mr Bright’s part cannot be characterised as reasonable in these circumstances. In accordance with the Department’s policies such as were disclosed in the evidence, what was required was prompt notice to a DRM to determine if Mr Guo’s continued detention was based on a reasonable suspicion he was an unlawful non-citizen despite what was contained in the High Court application and accompanying written submissions. This did not occur. Even if Mr Bright had become aware of the information, as Mr Dwyer was, the information was such that on and from 14 August 2014 (the date of service of the application and submission) no suspicion that Mr Guo was an unlawful non-citizen could continue to be reasonable. This is because the information identified all necessary facts, matters and circumstances to enable a detaining officer to check the relevant primary records and statutory provisions, as a result of which the only reasonably available inference would have been that Mr Guo continued to hold the temporary entry permit and thus was not an unlawful non-citizen.
153 The fact that it was not unreasonable of the Department to obtain legal advice is immaterial. The Department was faced with information the accuracy of which it could immediately check. Had it immediately checked, it would have seen that the information and description of the applicable statutory provisions was accurate. Accordingly, but for any contrary information being available or matter being identified (such as identification of some other fact, matter or circumstance leading to a different result or legal advice being obtained to the effect that the contentions in the application and submissions, for some reason, were wrong), no officer could have continued to reasonably suspect Mr Guo of being an unlawful non-citizen. It is not that the Department was bound to accept the contentions in the application and submissions. It is also not that the Department was precluded from obtaining legal advice. It is that Mr Guo could not be detained lawfully if there was not held by a relevant detaining officer the reasonable suspicion and the Commonwealth has not established any fact, matter or circumstance in existence as at 14 August 2014 or at any time until 26 September 2014 which would suggest that the contentions in the High Court application and submissions were incorrect or incomplete or would otherwise lead to a different result.
154 To put it another way, no officer was entitled to continue to detain Mr Guo merely for the purpose of ensuring that there was not some potential fact, matter or circumstance that might be disclosed in legal advice so that the contentions in the application and submissions might be wrong or might lead to a different result. Unless the Commonwealth could identify the existence of some such fact, matter or circumstance on 14 August 2014, no suspicion continued to be reasonable. In particular, continuing to detain Mr Guo merely because the Department might receive contrary legal advice could never be a proper foundation for the continuation of the required reasonable suspicion.
155 For these reasons, the time taken for the Department to receive legal advice is not the relevant issue. In response to the submissions for the Commonwealth, these points should be made.
156 First, it was proper for the Department to obtain legal advice – but unless there was some fact, matter or circumstance suggesting the application and submissions were incorrect or did not lead to the result identified, no continuing suspicion could be reasonable, and it was for the Commonwealth as the party bearing the onus to point to some such fact, matter or circumstance which it did not do.
157 Second, it is true that the fact that allegations are made does not mean they are correct – but the Department had within its power the means to immediately check each allegation and every statutory provisions identified. There is no evidence that anyone did so. Instead, it was decided simply to obtain legal advice without any officer (let alone Mr Bright, whom I infer was the detaining officer) turning his or her mind to the fact that Mr Guo could only be detained if a reasonable suspicion was held. It is one thing for an officer to have considered the allegations, checked their accuracy and found them wanting in some respect (which did not occur here) and another to have done nothing but seek and then wait for legal advice without apparently considering whether, in the face of the information and the records the Department held which would enable its accuracy to be checked, any suspicion about Mr Guo’s status could continue to be held, let alone a reasonable suspicion. In the present case, the evidence supports the inference that the Department adopted the latter course of conduct.
158 Third, it is true (but of great concern) that the detaining officer might not even know about the application and submissions – but this is hardly an argument which supports the Commonwealth. As discussed, a mere subjective suspicion is not sufficient. The suspicion must be reasonable which is to be objectively determined in all of the circumstances. The circumstances include the policies, procedures and practices of the Department. If the Department has not established such policies, procedures and practices as are necessary to ensure the detaining officer is promptly made aware of any material matter (such as the High Court application in Mr Guo’s case) then that fact renders any continuing suspicion of that officer other than reasonable.
159 Nothing in the authorities supports a contrary view. In particular, references to material available to the officer at the time must be understood in context. The notion, which is apparent in the Commonwealth’s submissions, that a person can continue to be detained because the relevant detaining officer is not made aware of information in the Department’s possession and which is or ought reasonably to be known to be relevant to a detained person’s status must be and is rejected. What was known or reasonable capable of being known at the time (Ruddock v Taylor at [40]) is also to be objectively determined.
160 In the present case, Mr Dwyer knew of the High Court application and submissions. Mr Dwyer knew or ought reasonably to have known on 14 August 2014 that the information was material to Mr Guo’s status. Whichever officer was detaining Mr Guo (and, as discussed, I consider it to have been Mr Bright) any such officer was reasonably capable of knowing at the time about the High Court application and submissions. This is because it was for the Department to have in place such policies, procedures and practices to ensure such material information was promptly provided to the detaining officer. Even if considered from the subjective perspective of the detaining officer, to ensure the suspicion continues to be reasonable such an officer must be satisfied that the Department’s policies, procedures and practices will promptly bring material information to the officer’s attention. Either way, ignorance on the part of the detaining officer about information which is held by a person in a position such as Mr Dwyer’s and in circumstances where Mr Dwyer knew the information was “serious” cannot assist the Commonwealth to discharge its onus of proof. To the contrary, such ignorance demonstrates the lack of any continuing reasonable suspicion that Mr Guo was an unlawful non-citizen.
161 Fourth, the time taken to obtain the legal advice may well have been reasonable – but this does not mean Mr Guo could continue to be detained in the interim given the lack of proof of anything other than the wish to obtain legal advice as the reason for his continuing detention. That wish, reasonable in and of itself, cannot found or be a reason for continuing to hold a reasonable suspicion that Mr Guo was an unlawful non-citizen. People are not able to be lawfully detained merely because the Department wants to obtain legal advice to see if allegations are correct or not. For the Commonwealth to prove lawful justification for Mr Guo’s detention, it was necessary for it to identify some fact, matter or circumstance which made it reasonable to continue to suspect Mr Guo was an unlawful non-citizen. Waiting for legal advice in case the allegations were incorrect, when the allegations and statutory provisions were able to be checked by the Department against its own records and, if checked, would have appeared to be accurate is incapable of founding a reasonable suspicion.
162 Fifth, the alleged novelty of the legal issue also involves a misplaced focus. The High Court application and submissions identified all facts and statutory provisions relevant to the contention that the temporary entry permit remained in force. There is nothing novel in giving effect to a statutory provision which, in the present case, stated that the temporary entry permit continued in force until the applicant was notified of refusal of the application for a permanent visa. On the evidence, the Department did nothing when it received the High Court application and submissions other than seek and wait for legal advice. Doing nothing while waiting for legal advice, given the information available, means that no suspicion continued to be reasonable.
163 Sixth, it may be accepted that in order to provide legal advice counsel required information about Mr Guo’s long and complicated immigration history. As such, it may be accepted that the Department had to collate extensive information at the request of the external lawyers. But this does not make the holding of a suspicion reasonable in the face of the information in the High Court application and submissions. The proposition is another way of saying that because it was merely possible that some fact, matter or circumstance might be discovered in Mr Guo’s extensive immigration history which meant the contentions in the High Court application and submissions would turn out to be wrong, a continued suspicion should be characterised as reasonable. This approach to the issue is wrong. Mr Guo could not continue to be detained unless the detaining officer or officers held a reasonable suspicion he was an unlawful non-citizen. Mr Guo had presented contentions which could immediately be checked. It is not apparent any officer did so. Had his contentions been checked, the officer would have discovered them to be accurate, insofar as they went. Unless, at that time, there was some fact, matter or circumstance identified which meant that the contentions were wrong or the result of them was not that Mr Guo continued to hold a temporary entry permit, no continued suspicion could be reasonable. The Commonwealth identified no such fact, matter or circumstance.
164 The obvious inference, and it is the inference I draw, is that Mr Dwyer was merely awaiting legal advice for the purpose of ascertaining whether Mr Guo’s contentions were correct or not. He had not sought to ascertain their correctness one way or another nor required any other officer to do so. But for the fact that a person can only be detained if the detaining officer or officers must hold the required reasonable suspicion, this is understandable. Given Mr Guo was in detention, however, Mr Dwyer’s approach was not capable of enabling a reasonable suspicion to be held either by Mr Dwyer or by the detaining officer or officers in the face of the information presented in the High Court application and submissions.
165 Seventh, and contrary to the Commonwealth’s submissions, the fact that Mr Guo had made an application for merits review within time, given the terms of the statutory provisions identified in the High Court application and submissions, would have appeared to be irrelevant or ought reasonably to have appeared so to any reasonable officer. As I have emphasised, this does not mean the Commonwealth was bound to release Mr Guo from detention merely because allegations were made. It is the combination of factors which meant that continued detention of Mr Guo could not have been based on a reasonable suspicion of any officer after 14 August 2014, including the nature of the contentions which, as Mr Dwyer, said, were obviously “serious”, together with these facts:
(a) the contentions could be checked immediately from the Department’s own records;
(b) it appears the contentions were not immediately checked or indeed checked at all or by anyone within the Department (let alone the detaining officer);
(c) if the contentions had been checked it would have been apparent that they were accurate; and
(d) no fact, matter or circumstance has been identified which would have enabled an officer reasonably to consider that the contentions were inaccurate or did not lead to the result that Mr Guo held a temporary entry permit by reason of which he was not an unlawful non-citizen;
166 As a result, the inference that should be drawn on the evidence is that the Department was obtaining legal advice not because it believed that Mr Guo’s contentions were wrong in any respect and not because it was on notice of any fact, matter or circumstance which might suggest the contentions were wrong but because, not having checked anything for itself, it had no positive inclination of mind about his contentions one way or another. The Department wished to obtain legal advice to see if Mr Guo’s contentions were correct but had no reason to suppose them to be incorrect. While obtaining such advice was a proper course of action there also, in the circumstances, could be no reasonable suspicion that Mr Guo was an unlawful non-citizen after 14 August 2014. The Department appears not to have appreciated that it is one thing to obtain legal advice (in a fairly leisurely manner) about a person’s status when the person is not being held in detention and another thing to obtain such advice while the person is being held in detention. Any fact, matter or circumstance indicating that a person is not an unlawful non-citizen is capable of rendering a continued suspicion on the part of a detaining officer or officers other than reasonable. It is incumbent upon the Department to ensure that there are systems in place to ensure that the detaining officer or officers are promptly made aware of such information and actively consider whether a reasonable suspicion can be sustained in the face of the fact, matter or circumstance whether or not legal advice has yet been obtained.
167 For these additional reasons, if I am incorrect in my views about the entirety of the first period involving the unlawful detention of Mr Guo, then I nevertheless consider that his detention between 14 August and 26 September 2014 was unlawful.
10. Lawfulness of Mr Guo’s initial detention – second period
168 Christopher Czerkies is another officer under the Act. Like Ms Luu, he is a compliance officer. He detained Mr Guo on 3 December 2014. On the evidence which I accept, Mr Czerkies handed to Mr Guo a letter purporting to notify Mr Guo that his application for a permanent visa had been refused before detaining Mr Guo.
169 The letter dated 3 December 2014 said that Mr Guo’s application for a permanent entry permit had been refused on 17 September 1996. The letter set out the terms of s 66 of the Act as they stood in September 1996. It then stated that the notification of the decision which Mr Guo had been given did not comply with s 66 as it did not correctly state the time within which Mr Guo could apply for review of the refusal decision. The letter also stated:
If you wish to have this decision reviewed, you must lodge an application for review within nine (9) days after the day on which you are taken to be notified of the decision to refuse your Class 815 (PRC (Permanent)) entry permit application.
170 This information about the time for review of the decision was wrong (again). Despite the letter expressly noting that the relevant refusal was made in September 1996 and referring to s 66 as it stood at that time, the reference to 9 days is based on s 500(6B) of the Act which was not in force in 1996 and is in these terms:
If a decision under section 501 of this Act, or a decision under subsection 501CA(4) of this Act not to revoke a decision to cancel a visa, relates to a person in the migration zone, an application to the Tribunal for a review of the decision must be lodged with the Tribunal within 9 days after the day on which the person was notified of the decision in accordance with subsection 501G(1). Accordingly, paragraph 29(1)(d) and subsections 29(7), (8), (9) and (10) of the Administrative Appeals Tribunal Act 1975 do not apply to the application.
171 I infer from the terms of the letter and the lack of any evidence to the contrary which it was within the power of the Commonwealth to call (in particular, the fact that the lawyer within the Department who drafted the letter did not give evidence) that no-one within or on behalf of the Department considered the statutory provision which regulated Mr Guo’s right to apply for review to the Tribunal. Rather, I infer that the part of the letter dealing with a person’s right of review was simply copied over from the pro-forma or standard letter as it existed on 3 December 2014. As explained above, the actual position is that s 500(6B) did not apply to Mr Guo’s case because it did not commence until 1 June 1999, three years after the refusal of Mr Guo’s application for a permanent visa, and item 32(1) of the statute which introduced s 500(6B) into the Act (the Migration Legislation Amendment (Strengthening of Provisions relating to Character and Conduct) Act 1998 (Cth)) provided that:
Despite the amendments of sections 500 and 502 of the Migration Act 1958 made by this Act, those sections and the Administrative Appeals Tribunal Act 1975 continue to apply, in relation to a review of a decision made under section 501 of the Migration Act 1958 before the commencement of this item, as if:
(a) those amendments had not been made; and
(b) section 501 of the Migration Act 1958 had not been repealed by this Act.
172 As the decision to refuse Mr Guo’s application for a permanent visa was made before the commencement of the amendments to s 500, s 500 as it existed before the amendments, continued to apply to any review of the decision. As a result, the 28 day time limit which applied as at the date of the refusal of Mr Guo’s application for a permanent visa (by ss 29(1)(d) and 29(2)(a) of the Administrative Appeals Tribunal Act 1975 (Cth) (as then in force)) continued to apply. As a further result, consistent with the reasoning in Srey, the notice of 3 December 2014 stating the incorrect time limit of 9 days was not a notice within the meaning of s 66 of the Act, which meant that Mr Guo had not been “notified in accordance with regulation 2.8” as required by item 437.52 of the 1993 Regulations, and his temporary entry permit remained in force. Mr Guo was thus not an unlawful non-citizen by reason of the 3 December 2014 letter. In other words, the Commonwealth had repeated the same error on 3 December 2014 which made the original notice of 25 October 1996 invalid – it had not correctly identified the time period for review of the refusal decision.
173 To return to Mr Czerkies, he was authorised to detain Mr Guo only if he knew or reasonably suspected that Mr Guo was an unlawful non-citizen. The Commonwealth contended that Mr Czerkies subjectively suspected that Mr Guo was an unlawful non-citizen and that his suspicion was reasonable.
174 According to the Commonwealth, Mr Czerkies’ state of mind is disclosed in a CCI document which Mr Czerkies completed “at the time” he detained Mr Guo. In fact, Mr Czerkies’ evidence is that he completed the CCI after detaining Mr Guo.
175 Mr Czerkies had no actual recollection of the events of 3 December 2014. He agreed that he had relied on an assessment of Mr Guo’s status by another officer, Joelle Girard. Ms Girard had completed a BAT relating to Mr Guo on 3 December 2014. I am not satisfied, on the state of the evidence, that Mr Czerkies had seen this document before he detained Mr Guo. In his affidavit Mr Czerkies did not say that his practice was to check such a document. Rather, he explained that his usual practice was as follows:
(1) assignment to him of responsibility for a compliance visit;
(2) provision to him of a “notification package” if the compliance visit involved notice of visa cancellation or refusal;
(3) Mr Czerkies would not check the notice of visa cancellation or refusal which formed part of the notification package because he understood that the “processing area would have prepared the letter with all the correct details”, as they have “much greater experience with respect to the preparation of s 501 notification letters and access to legal assistance where required”;
(4) he would not detain a person until he had been informed that a person such as Ms Girard (a Base Officer) had completed a case law assessment and that there was no additional information that may have affected the person’s immigration status; and
(5) during a compliance visit, the Team Leader, would call a Base Officer who was responsible for completing a desktop examination during the compliance visit, the purpose of such a call being to confirm that nothing has affected a person’s immigration status since approval of the compliance visit.
176 This evidence indicates that Mr Czerkies could not have looked at any document Ms Girard prepared before he detained Mr Guo. Mr Czerkies was not the Team Leader during the compliance visit on 3 December 2014. Emeliza Deganos was the Team Leader. From this, I infer that Mr Czerkies did not call Ms Girard during the compliance visit. If anyone called Ms Girard, it would have been Ms Deganos. Ms Deganos did not give evidence. There is no suggestion she was not available to be called. Given that she was the Team Leader for the compliance visit on 3 December 2014, I am not prepared to drawn any inference favourable to the Commonwealth about either the fact of such a call or, more importantly, what was said or ultimately communicated to Mr Czerkies other than that, in accordance with Mr Czerkies’ usual practice, he understood that there was no additional information affecting Mr Guo’s immigration status when he detained Mr Guo.
177 This begs the question of what such information might be additional to, at least in the mind of Mr Czerkies. Mr Czerkies completed a BAT himself on 3 December 2014. Whether this was before or after detaining Mr Guo, I would infer that Mr Czerkies’ state of mind did not alter on 3 December 2014. The same inference applies to the CCI form, although it was completed after the detaining of Mr Guo, it was completed on the day, and there is no reason to infer anything other than that it reflected Mr Czerkies’ state of mind at the time he detained Mr Guo.
178 According to the BAT Mr Czerkies completed, no notification assessment was required because Mr Guo’s temporary entry permit had been cancelled under s 501(1). Mr Czerkies understood that the refusal of Mr Guo’s permanent visa application meant that any visa Mr Guo might have held was also cancelled. By this, given some related oral evidence, it must be taken that Mr Czerkies understood that the notice of refusal of Mr Guo’s permanent visa application meant that any visa Mr Guo might have held was also cancelled. If the notice was valid, this understanding would have been basically correct for Mr Guo’s temporary entry permit.
179 The CCI form records that the “s501 paperwork” was hand delivered to Mr Guo, noting that his permanent visa application had been refused under s 501(1) of the Act, and that no further case law assessment was required. Mr Czerkies placed a cross in the box “DETERMINATION – Reasonable suspicion established that a person is a UNC”.
180 Based on this evidence, I am satisfied that Mr Czerkies suspected that Mr Guo was an unlawful non-citizen when he detained Mr Guo.
181 Was Mr Czerkies’ suspicion reasonable? It was submitted for Mr Guo that Mr Czerkies’s suspicion was not reasonable on a number of bases.
182 It was submitted that “Mr Czerkies at the very least ought to have been aware that the effect of the delegate’s decision to refuse to grant a transitional (permanent) visa to Mr Guo pursuant to s 501 of the Act was not, contrary to what he said he believed, to cancel any other visa that he might hold at the time”. As discussed above, I do not consider this a fair reflection of Mr Czerkies’ evidence which disclosed that he understood notification of refusal of the permanent visa application would bring any other visa to an end. In the case of Mr Guo’s temporary entry permit, this would have been correct if the notice of 3 December 2014 had been valid.
183 It was submitted that “Mr Czerkies’ belief that Mr Guo’s transitional (temporary) visa had been cancelled contradicts his documentary evidence, relevantly, the Compliance Client Interview dated 3 December 2014 (CCI), which he signed and which noted that Mr Guo was the holder of that visa as at that date”. This is not a fair reading of the document. The document does state that Mr Guo held a current Class 437 visa. This was correct. It is apparent, however, that the form records Mr Czerkies’ belief that because he had given to Mr Guo the notice of refusal of Mr Guo’s permanent visa application the Class 437 temporary entry permit Mr Guo held had also ceased.
184 It was submitted that “Mr Czerkies ought reasonably to have known that he was attending Mr Guo’s residence for the purpose of re-notifying him of the delegate’s decision - despite Mr Czerkies’ equivocal evidence on this question in cross-examination”. The fact that Mr Czerkies did not independently recall the events of 3 December 2014 does not mean that it should be inferred that he did not understand the purpose of his attendance at Mr Guo’s home on 3 December 2014. From the documentary evidence, it is apparent that at the time Mr Czerkies would have known that the purpose of the attendance was to give Mr Guo the notice of refusal of his permanent visa application, the effect of which would be that Mr Guo’s temporary entry permit would cease, and he would be an unlawful non-citizen whom Mr Czerkies must then detain under s 189(1).
185 It was submitted that, acting reasonably, Mr Czerkies ought to have ascertained the effectiveness of the notification letter. Contrary to the Commonwealth’s submissions about this, I consider it apparent from the evidence that Mr Czerkies did not consider whether the notification letter was a valid or effective notice. I infer that Mr Czerkies assumed the notification letter was a valid or effective notice in accordance with his usual practice not to check such letters. I also do not accept that Mr Czerkies gave evidence that he spoke to Roger Allen about the notification letter, or at all, on 3 December 2014. Mr Czerkies said he would have spoken to his Team Leader during the compliance visit who was Ms Deganos. There is no evidence any such conversation concerned the validity or effectiveness of the notification letter.
186 Was Mr Czerkies’ suspicion that Mr Guo was an unlawful non-citizen reasonable in circumstances where:
(1) Mr Czerkies knew that Mr Guo held a Class 437 temporary entry permit which meant that Mr Guo was a lawful non-citizen unless and until that temporary entry permit ceased;
(2) Mr Czerkies correctly understood that it was the giving of the notification letter of refusal of the permanent visa application which would cause the temporary entry permit to cease;
(3) Mr Czerkies ought reasonably to have known that Mr Guo had been held in detention between 29 February 2012 and 26 September 2014 when he was in fact a lawful non-citizen (this information must have been readily ascertainable from the Department’s records and ought reasonably to have been made known to Mr Czerkies by his superiors);
(4) Mr Czerkies ought reasonably to have known that this was a second attempt to notify Mr Guo of the refusal of his permanent visa application (this information must have been readily ascertainable from the Department’s records and ought reasonably to have been made known to Mr Czerkies by his superiors);
(5) accordingly, Mr Czerkies ought reasonably to have known that the first purported notification letter was invalid or ineffective for some reason (this information must have been readily ascertainable from the Department’s records and ought reasonably to have been made known to Mr Czerkies by his superiors) ; and
(6) it must be inferred that Mr Czerkies made no attempt to ascertain why the first notification letter was invalid or ineffective, made no attempt to ascertain if the defect had been cured in the second notification letter, and had not been provided with any information to the effect that the second notification letter had been prepared having regard to the defect in the first notification letter or, indeed, with the intention of ensuring that the same defect was not contained in the second letter.
187 In my view, in these circumstances, it was not reasonable for Mr Czerkies, as an officer empowered to detain a person of their liberty, to simply assume that the second notification letter was valid or effective to bring Mr Guo’s temporary entry permit to an end. The fact that it was Mr Czerkies’ usual practice not to check notification letters but to rely on the “processing area” because they have “much greater expertise” in preparing such letters and can access legal assistance may be sufficient to demonstrate a reasonable suspicion in an ordinary case. But by 3 December 2014 Mr Guo’s case was far from ordinary. Mr Czerkies, who knew in advance by the approval of the compliance visit that he may be called upon to deprive Mr Guo of his liberty, had ample opportunity to consider the basic facts of Mr Guo’s case, including that the refusal of Mr Guo’s permanent visa application was in 1996, Mr Guo had been notified of this on 25 October 1996, Mr Guo had been detained between 29 February 2012 and 26 September 2014, Mr Guo was released on 26 September 2014 because the notification of 25 October 1996 was defective, and was being re-notified on 3 December 2014 with the object of causing his temporary entry permit to cease. In such circumstances, for Mr Czerkies to make no effort to satisfy himself that the second letter had been prepared with knowledge of the first defect and with the intention of not repeating it, undermines the reasonableness of the suspicion he held about Mr Guo as an unlawful non-citizen.
188 It is not that Mr Czerkies had to comb through the letter himself with the Act by his side. It is that, acting reasonably, Mr Czerkies ought to have made sure he knew the basic facts about why Mr Guo was being given a notification letter on 3 December 2014 in relation to a decision in 1996 to refuse a visa application and taken some steps to satisfy himself that the notification letter he was giving to Mr Guo would be effective to bring Mr Guo’s temporary entry permit to an end. On the evidence, I consider that Mr Czerkies did nothing more than assume the letter would be effective for that purpose, despite what any inquiry about the basic facts would have exposed was a case, which I infer, must have been out of the ordinary course.
189 I also consider that Mr Czerkies’ suspicion was not reasonable on another basis. It is that it was also unreasonable for the Department’s policies, practices and processes to enable Mr Czerkies to attend a compliance visit with Mr Guo with the intention of detaining him, without Mr Czerkies being provided with the basic facts about Mr Guo’s case and information sufficient to satisfy Mr Czerkies that the notification letter he would be giving to Mr Guo would cause Mr Guo’s temporary entry permit to cease. The fact that another officer within the Department might have had access to this information is immaterial to the lawfulness of Mr Czerkies’ initial detention of Mr Guo on 3 December 2014 unless there is sufficient evidence (which, for the reasons given, there is not) that this information, in some way, had been made known to Mr Czerkies. It was Mr Czerkies who was initially detaining Mr Guo and Mr Czerkies’ state of mind which was relevant. Information reasonably available to Mr Czerkies included the basic facts about Mr Guo’s case as described above. There is insufficient evidence of Departmental policies, practices and processes to support any inference that those facts were made known to Mr Czerkies before he detained Mr Guo.
190 For these reasons the Commonwealth has not established that the officer who detained Mr Guo on 3 December 2014 held a reasonable suspicion at that time that Mr Guo was an unlawful non-citizen. Nor has it established that any other officer detained Mr Guo on 3 December 2014. Accordingly, the states of minds of those other officers, which have not been proved to have been communicated to Mr Czerkies by the time he detained Mr Guo, cannot found the existence of a relevant reasonable suspicion.
11. Lawfulness of Mr Guo’s continuing detention – second period
191 Given the conclusions above, it follows that the Commonwealth cannot rely on Mr Czerkies as an officer whose state of mind enabled Mr Guo’s continuing detention until 6 March 2015. There are also other reasons which would require this conclusion. Mr Czerkies completed a Mandatory Control Point 4 Detention Note Form (MCP4) on 4 December 2014. According to Mr Czerkies the purpose of this form is to document why the officer who detained a person held a reasonable suspicion that the detained person was an unlawful non-citizen, before the officer detained the person. In the MCP4 he completed Mr Czerkies recorded that he held a reasonable suspicion that Mr Guo was an unlawful non-citizen because his Class 437 temporary entry permit had ceased on 3 December 2014. Further, that:
Mr Guo…is not affected by any known notification errors.
192 Apart from his evidence that he did not check notification letters because he understood that the “processing area” would have prepared the letter “with all the correct details”, Mr Czerkies did not identify in his affidavit anything he did to satisfy himself that Mr Guo was not affected by any known notification errors. This is in circumstances where it was reasonably available to Mr Czerkies to ascertain that Mr Guo’s case was out of the ordinary in that:
(1) Mr Guo had been affected by a known notification error which caused him to be detained as an unlawful non-citizen for two and a half years when he in fact held a visa; and
(2) the notification letter of 3 December 2014 related to a visa refusal from 1996.
193 In his oral evidence Mr Czerkies said that to complete that part of the MCP4 he would have reviewed the BAT/CAT documents as referred to on the form in TRIMS. By this Mr Czerkies meant he looked at the BAT he prepared on 3 December 2014 which has been discussed above. He also looked at the BAT Ms Girard prepared on 3 December 2014. On this form Ms Girard noted that a notification assessment was not required because “the client had a visa refused or cancelled on character grounds”, which can only be a reference to the notification letter given to Mr Guo on 3 December 2014. There is no evidence that Ms Girard considered any fact, matter or circumstance which might be relevant to Mr Guo’s status apart from the mere fact of the giving to Mr Guo of a notification letter on 3 December 2014 (or, perhaps, Ms Girard’s anticipated giving of such a letter to Mr Guo). Ms Girard is thus in no better position than Mr Czerkies.
194 I do not accept that it was reasonable in the identified circumstances for Mr Czerkies to assume that Mr Guo was not affected by any notification error relevant to the status of his temporary entry permit merely because Mr Czerkies assumed also that the “processing area” would have included all “correct details” in the letter of 3 December 2014. It is not appropriate to attempt to identify what might have made Mr Czerkies’ state of mind reasonable; for present purposes all that needs to be said is that in the circumstances of Mr Guo’s case, to do no more about the validity of the notification of 3 December 2014 than to make two assumptions (the “processing area” would have included all the correct details and thus there is no known notification error) was insufficient for the detaining officer to reach any reasonable suspicion about Mr Guo’s immigration status.
195 Apart from this, there is no basis in the evidence for inferring that Mr Czerkies held any continuing state of mind about Mr Guo after 4 December 2014. As noted, Mr Czerkies explained that the purpose of the completion of the MCP4 was to document his reasons for holding the asserted reasonable suspicion before he detained Mr Guo. Nothing in the evidence indicates any ongoing involvement of Mr Czerkies with the continued detention of Mr Guo. Mr Czerkies did not say anything supportive of an inference that he continued to hold any suspicion about Mr Guo one way or another after 4 December 2014. Consistent with my reasons above, no such inference would be drawn in the Commonwealth’s favour and nor would it assist because Mr Czerkies did not continue to detain Mr Guo after 8.50pm on 3 December 2014.
196 The Commonwealth relied also on Roger Allen as an officer holding the required reasonable suspicion that Mr Guo was an unlawful non-citizen. Mr Allen was a Compliance Manager within the Department. On 28 November 2014 he received an email from Carmen Muscat which informed him that a re-notification letter to Mr Guo had been finalised. The email said also:
You may find the legal advice below useful. Mr Guo’s Class 437 visa will cease when he is handed the re-notification letter.
197 The legal advice has not been disclosed. Mr Allen said he:
…was comfortable that the re-notification letter was correct because it had been settled on legal advice from within the Department, although I nevertheless would have read the letter to make sure nothing was obviously wrong with it.
198 The problem for the Commonwealth, in my view, is that the only reasonable inference on the evidence is that no-one had turned their mind to the rights of review which had to be stated in the re-notification letter (by which I mean the fact that Mr Guo’s review rights had to be considered in the context of the fact that the refusal decision was made in 1996). That part of the re-notification letter has all the hallmarks of a copy and paste from a pro-forma document, the lawyer who prepared the letter was not called to give evidence, and Ms Muscat was not called to give evidence. Mr Allen also must be inferred not to have considered that issue because he was relying on the fact that the letter had been prepared with the assistance of legal advice.
199 Mr Allen was provided with a Compliance Visit Application seeking his approval for officers to conduct a compliance visit to Mr Guo. Mr Allen approved the visit. That document says nothing about any officer holding a reasonable suspicion about Mr Guo’s status but Mr Allen said he only approves such a visit if he suspects the person is an unlawful non-citizen. Mr Allen also said, however, that it is the compliance officer who is responsible for detaining the person, not Mr Allen. Mr Allen cannot instruct the compliance officer as to the exercise of that officer’s functions. If that officer decides to detain a person, that officer will contact Mr Allen to discuss the matter to ensure that they have taken into account relevant circumstances. Further, this process concerned the initial detention of the person, not their continued detention. If Mr Allen had any reason to believe a person’s continued detention was unlawful he would raise it with the DRM.
200 This evidence confirms that:
(1) Mr Allen was not an officer who detained Mr Guo at any time; and
(2) as I have found, Ms Luu was the officer who detained Mr Guo at the start of the first period and Mr Czerkies was the officer who detained Mr Guo at the start of the second period.
201 Contrary to the Commonwealth’s submission, Mr Allen’s state of mind is immaterial unless there is some evidence by which it can properly be inferred that Mr Allen communicated some relevant fact or matter to Mr Czerkies before Mr Czerkies detained Mr Guo. There is no such evidence. Mr Allen reviewed the MCP4 Mr Czerkies prepared but this was on 4 December 2014, after Mr Guo was detained and transferred by Mr Czerkies to the Villawood Immigration Detention Centre.
202 The Commonwealth relied on Ms Deganos who prepared the compliance visit application and on 4 December 2014, a compliance visit report. The problem in respect of Ms Deganos is that she did not detain Mr Guo on 3 December 2014 and did not continue to detain him thereafter. Ms Deganos also did not give evidence but was available to do so as she continues to work for the Department. Nothing in the evidence suggests that she had any involvement in Mr Guo’s detention other than that, as she said in her compliance visit report, she observed Mr Czerkies conduct an interview with and detain Mr Guo. In his CCI document Mr Czerkies identified Ms Deganos as the officer who would be making an “ongoing/continuing detention assessment” but there is no evidence that Ms Deganos did so.
203 Finally, the Commonwealth relied on Mr Campbell as having the relevant reasonable suspicion that Mr Guo was an unlawful non-citizen throughout his second period of detention. For the reasons already given above about the first period of detention, Mr Campbell’s state of mind cannot assist the Commonwealth.
204 On 4 March 2015 Mr Guo’s solicitors wrote to the Department noting that at a hearing before the Tribunal the Minister’s legal representative said that s 500 of the Act in its form before amendment by the Migration Legislation Amendment (Strengthening of Provisions relating to Character and Conduct) Act 1998, applied to Mr Guo’s case so that, of necessity, the notification letter of 3 December 2014 was wrong to state that Mr Guo had 9 days to lodge a review application. As a result, Mr Guo’s temporary entry permit had not ceased and he should be released from detention forthwith. As submitted for Mr Guo:
There then followed, between 11:16 am on 5 March 2015 and 4:28 pm on 6 March 2015, a series of internal e-mails with respect to Mr Guo’s status and the preparation of a third notification letter. Those e-mails reveal that, from 11:16 am (or, at least, 7:23 pm) on 5 March 2015, officers in the Department knew that the applicant was not an unlawful non-citizen, as he continued to hold a transitional (temporary) visa, the second notification letter having been defective. Mr Dwyer agreed with this assessment in cross-examination. Each of the persons identified in those e-mails was an “officer” as defined in s 5(1) and for the purposes of s 189(1), and it is not to the point that none was “responsible for the detention of the Applicant”, as the Commonwealth submits at [109]. Notwithstanding what was known about the effectiveness of the second notification letter as at 5 March 2015, Mr Guo was not released from detention as ss 189(1) and 196(1) required. Instead, he was kept in detention until a third notification letter was drafted and served on him.
205 It is apparent from the Commonwealth’s submissions, to which the above paragraph responds, that the Commonwealth is trying to assert, in support of its case, that the state of mind of any officer is sufficient to justify Mr Guo’s detention despite no such officer detaining Mr Guo and, against Mr Guo’s case that the state of mind of those or other officers who knew or ought reasonably to have known that the notification letter of 3 December 2014 was defective and thus that Mr Guo’s temporary entry permit had not ceased, is irrelevant. The tension between these two positions should be apparent. In any event, and as discussed, it is the state of mind of the detaining officer or officers which is relevant. The Commonwealth cannot rely on unreasonable policies, practices and procedures to claim that the detaining officer did not know of relevant facts to support a continued reasonable suspicion on the part of the detaining officer. In accordance with the Department’s policies such as were disclosed in the evidence, what was required was prompt notice to a DRM to determine if Mr Guo’s continued detention was based on a reasonable suspicion he was an unlawful non-citizen. This did not occur. Rather, and consistent with its position between 14 August and 26 September 2014, the Department did what was convenient for it, but this time did so in conscious disregard of Mr Guo’s rights rather than merely apparent ignorance of its own responsibilities; it retained Mr Guo in detention so yet another notification letter could be prepared and served on Mr Guo. This letter, which Mr Guo does not dispute brought his temporary entry permit to an end, was served on the morning of 6 March 2015.
206 For these reasons the Commonwealth has not established lawful justification for Mr Guo’s continued detention throughout the second period.
12. Damages
207 Mr Guo was falsely imprisoned by the Commonwealth from 29 February 2012 to 26 September 2014 and from 3 December 2014 to 6 March 2015.
208 I do not accept that Mr Guo was handcuffed when detained on 3 December 2014. Mr Guo had been detained by police on a number of occasions and had been handcuffed. While Mr Guo and his son, Charlie Guo, recall him being handcuffed on 3 December 2014, I am unable to accept that their recollection is accurate. The evidence satisfies me that compliance officers did not use handcuffs for some considerable time before 3 December 2014 as a matter of Departmental policy. In particular, Mr Czerkies’ evidence of never having used handcuffs to detain a person and his recollection of a police officer (not a Departmental officer) twice using handcuffs on a person being detained under the Act (not being Mr Guo) persuades me that the evidence of Mr Guo and his son in this respect most likely relates to another occasion on which Mr Guo was arrested.
209 Mr Guo was unlawfully deprived of his liberty by the Commonwealth for about 2 years and 10 months. He was held in Villawood where his liberty was seriously curtailed in all respects. While he had spent time imprisoned it must be recalled that his prison terms had ended; his punishment for his crimes was over. In immigration detention he was held in maximum security with three toilets and showers for between 30 to 50 people at any time. He was subject to regular pat down searches which humiliated him and made him feel scared, vulnerable and distressed. Once, his genitals were touched which upset him. He was subjected to room searches, which sometimes resulted in pain relief tablets being confiscated, and left him to clean up the disarray caused. He was subject at all times to the control and direction of officers at the detention centre. He could not obtain medical help as and when he felt he needed it but had to fill in forms to access medical assistance. He found the process of obtaining medical assistance long and tedious. His mobile phone was confiscated. He was threatened with deportation to China. He could not assist one of his sons who had serious mental health problems which included suicide attempts. During his second period of detention he was threatened with and once subjected to time in a “penalty room” overnight which was very small and cold with minimal amenities.
210 It was submitted for Mr Guo that:
122. First, he should be awarded compensatory damages (including aggravated damages) for unlawful detention. That award should encompass damages for deprivation of liberty as well as the circumstances thereof, which are discussed below. Some of those circumstances may be characterised as aggravating features.
123. Secondly, he should be awarded exemplary damages in relation to the Alternative Period and/or the period from 4 to 6 March 2015.
124. Thirdly, the assessment of general, aggravated and exemplary damages ought to be made on a principled basis, having regard to the decided cases.
125. Fourthly, the nominal damages principles discussed by the Full Court in Fernando v Commonwealth (2014) 231 FCR 251 (Fernando – Nominal Damages) are inapposite in the present context.
211 I propose to deal with the fourth point first.
212 The Commonwealth submitted that:
Damages for unlawful imprisonment (apart from exemplary damages) are compensatory in nature. A consequence of the compensatory nature of damages is that the Applicant is not entitled to substantial damages if he would have been detained in any event had correct principles and lawful policies been applied.
213 The first sentence of this submission is uncontroversial. It is the second sentence which involves controversy. Before moving to that controversy I should note that one issue which the parties did not address was the potential application of the Civil Liability Act 2002 (NSW). False imprisonment is an intentional tort. Section 3B(1)(a) of the Civil Liability Act provides that the Act does not apply to civil liability “in respect of an intentional act that is done by the person with intent to cause injury or death”. Injury is defined by s 26A(1) to mean personal injury which is itself defined inclusively (s 5). In Houda v New South Wales [2005] NSWSC 1053 Cooper AJ held that “injury” in s 3B(1)(a) of the Civil Liability Act was not limited to bodily injury so that, in a case of false imprisonment, there was an intent to cause injury in the sense of an intent to deprive the plaintiff of his liberty (amongst other things (at [346]). As a result, the Civil Liability Act did not apply (at [347]). If appropriate, I propose to give the parties a further opportunity to make submissions about this issue. The need to do so will be informed by my resolution of the issues in dispute between the parties.
214 The Commonwealth relied on four cases in support of its propositions, Regina (Lumba) v Secretary of State for the Home Department [2012] 1 AC 245, R (Kambadzi) v Secretary of State for the Home Department [2011] 1 WLR 1299, Fernando v Commonwealth (No 5) [2013] FCA 901 and Fernando v Commonwealth [2014] FCAFC 181 (Fernando [2014] FCAFC 181; (2014) 231 FCR 251, and CPCF v Minister for Immigration and Border Protection [2015] HCA 1; (2015) 255 CLR 514.
215 In Lumba two non-citizens were falsely imprisoned, having been detained based on an unlawful policy. On the question of damages, Lord Dyson JSC explained (at [90]-[96]) that as damages were to be awarded on the basis that the falsely imprisoned person is entitled to be put into the position the person would have been in if the tort had not been committed, it followed that a detainee who would not have been imprisoned if the required review had been carried out was entitled to more than nominal damages but the detainee who would have been lawfully imprisoned if the required review had been carried out was entitled to nominal damages only; in other words, but for the tortious conduct, the latter person would have been imprisoned in any event. This was said at [93]:
The question here is simply whether, on the hypothesis under consideration, the victims of the false imprisonment have suffered any loss which should be compensated in more than nominal damages. Exemplary damages apart, the purpose of damages is to compensate the victims of civil wrongs for the loss and damage that the wrongs have caused. If the power to detain had been exercised by the application of lawful policies… it is inevitable that the appellants would have been detained. In short, they suffered no loss or damage as a result of the unlawful exercise of the power to detain. They should receive no more than nominal damages.
216 Lord Kerr JSC at [253] said:
On the question whether the award of nominal damages or some other measure of compensation is required in false imprisonment claims, I believe that a distinction is clearly merited between those cases where it is plain that the detainees would have been released and those where it can be shown that they would have been lawfully detained, had the correct procedures been followed.
217 Kambadzi involved similar circumstances. The Supreme Court applied the reasoning in Lumba, meaning that the person’s imprisonment was unlawful. As to damages, Lord Hope of Craigshead DPSC said it cannot be assumed in every case that the detention was “justifiable” (at [55]) which, in context, can mean only that if the required review had been carried out the person inevitably would have been detained. Baroness Hale at [74] said that the amount of compensation to which a person is entitled must be affected by whether the person would have suffered the loss and damage “had things been done as they should have been done” (at [74]). As the case was not one in which it was inevitable that the person would have been detained if the required review had been carried out, there had to be an inquiry as to damages. Lord Kerr of Tonaghmore JSC at [89] said that, as Lumba held, causation is relevant to damages so that if it could be shown that the person would not have been released had the required review been carried out only nominal damages would be recoverable.
218 Fernando v Commonwealth (No 5) involved false imprisonment of a person who had been detained following cancellation of a visa, but the cancellation was void for denial of procedural fairness. Justice Siopis, dealing with the question of damages, considered that the reasoning in Lumba and Kambadzi about causation in respect of loss was sound and, on the facts, Mr Fernando was going to be detained in any event, with the consequence that he was entitled to nominal damages only. On appeal in Fernando [2014] FCAFC 181 Besanko and Robertson JJ took the same view on the basis that Mr Fernando “could and would have been lawfully detained in any event” saying at [88]:
The primary judge relied on the provisions of the Act rather than evidence to support his conclusion that the appellant could and would have been lawfully detained by an officer performing his or her duty under s 189(1) of the Act (see [96] of his third judgment). We think that he was correct in doing so. The definition of “officer” in s 5 of the Act is very broad, s 189(1) of the Act places an obligation, not a mere discretion, on an officer to detain a non‑citizen in the circumstances envisaged in the section, and, finally, nothing was put to this Court which suggests that any officer would have viewed the cancellation of the appellant’s visa as other than regular and effective.
219 At [168] Barker J agreed noting that “there is no realistic basis upon which it can be concluded that the appellant would not have been detained”.
220 CPCF involved different facts with the consequence that the majority of the High Court declined to deal with the issue of damages. Justice Kiefel, however, considered that:
[324] Unlawful detention is a trespass and actionable as a tort regardless of whether the plaintiff has suffered harm. In the present case, had the plaintiff not been detained on the Australian vessel for the period in question, he would have been detained in immigration detention. The circumstances of this case are similar to those pertaining in R (Lumba) v Secretary of State for the Home Department. In that case, the claimants were falsely imprisoned, but the Supreme Court of the United Kingdom held that it was inevitable that they would have been detained in any event, had correct principles and lawful policies been applied. The claimants were held to have suffered no loss or damage as a result of the unlawful exercise of the power to detain and therefore nominal damages only could be awarded.
[325] The plaintiff submits that this court should leave the question as to the extent of any award of damages to be assessed on remitter. However, it seems to me that only one conclusion is possible and the terms of any remitter ought to be made clear. Damages could only be awarded for the infraction of the MP Act. In such circumstances, only nominal damages can be awarded.
221 The Commonwealth submitted that, if it is asked what could and would have happened had the tort not been committed, the answer is Mr Guo would have been detained in any event. If committed at all, the tort was committed because Mr Guo was detained without lawful justification. This resulted from the fact that the letters notifying Mr Guo of the refusal of his permanent visa did not inform him of the correct time within which a review application could be made, as a result of which the notice was not valid or effective or not a notice within the meaning of the applicable statutory provisions. Had correct procedures been followed each notice would have been effective to bring Mr Guo’s temporary entry permit to an end and he could and would have been detained as an unlawful non-citizen, his permanent visa having been refused on character grounds under s 501. As the Commonwealth put it:
…it is inevitable that the Applicant could and would have been lawfully detained throughout the period. This is so because:
(a) upon receiving proper notification of the decision to refuse his visa application under s 501, the Applicant’s Temporary Visa would have immediately ceased to be in effect;
(b) upon cessation of the Temporary Visa, the Applicant would have become an unlawful non-citizen;
(c) all officers within the meaning of s 189 would thereafter come under a duty to detain the Applicant pursuant to s 189 of the Act. As a result, it is inevitable or virtually inevitable that he would have been detained; and
(d) there is no prospect that the Applicant would have been released from detention once he had been taken into lawful detention. He was not eligible to make an application for a visa. During the course of his detention to date, the Minister has not intervened to exercise his powers under s 195A and 197B of the Act. There is no reason to think that those powers would have been exercised in the counterfactual scenario. The Applicant had been refused a visa on character grounds and, because of that, would always have been the subject of detention.
It is also clear that the Applicant would have been detained in relevantly similar conditions to those in which he was actually detained.
222 Sub paragraph (d) above contains an important fact. Mr Guo was not able to apply for another visa under s 501E of the Act. Mr Guo had exhausted all possibilities of obtaining a visa. He remained a lawful non-citizen only by reason of the fact that his temporary entry permit continued to subsist until he was properly notified of the decision from 1996 to refuse his application for a permanent visa.
223 For Mr Guo it was submitted that Fernando [2014] FCAFC 181 is distinguishable as:
(1) Mr Guo was not the subject of a decision to cancel his visa; rather, a decision was made, pursuant to s 501 as it then stood, to refuse to grant to him a transitional (permanent) visa;
(2) Mr Guo held a temporary entry permit which would subsist until notified of the decision not to grant him a permanent visa;
(3) there was, therefore, no decision on the record, regular on its face, which purported to determine Mr Guo’s migration status; and
(4) it cannot, therefore, be said by the Commonwealth that the decision to refuse to grant a transitional (permanent) visa, or the first notification letter, was enough to make it probable (let alone “inevitable”) that an officer carrying out his or her duty would form a reasonable suspicion that Mr Guo was an unlawful non-citizen.
224 Further, it was submitted for Mr Guo that the question is not what the position would have been had the first notification letter to Mr Guo been valid. In Fernando [2014] FCAFC 181 at [86] the relevant hypothesis for the assessment of damages was explained in these terms:
The relevant counter‑factual is that the appellant had not been unlawfully detained in the first place, and requires the Court to consider what could and would have happened had the tort not been committed.
225 Accordingly, it was put for Mr Guo, applying Fernando [2014] FCAFC 181, that:
the Court would seek to determine what would have happened if relevant officers had properly considered whether Mr Guo held a visa. For reasons noted above (and in contrast to Fernando) there is no obvious answer to that question. The most likely answer is that they would have realised that he did hold a visa and could not be detained. To hypothesise that somebody in the Department would then have set about changing that position, so that Mr Guo could be detained, is to go further than anything decided in Fernando.
226 Reliance was also placed on the observations of Barker J at [169] in Fernando [2014] FCAFC 181:
It seems to me that the only basis upon which it could be argued that the appellant would not have been detained is if an assumption is made that the types of decision‑making deficiencies identified by the earlier Full Court would be repeated. I do not consider that any such assumption can be made and indeed that it is inappropriate to make such an assumption.
227 Finally, according to the submissions for Mr Guo:
the Commonwealth’s nominal damages contention fails on the facts. None of the Commonwealth’s witnesses gave evidence as to what could and would have happened on the relevant counterfactual as framed by the applicant. Instead, their evidence, most of which was struck out by Jagot J, focused on the question what he or she would have done had he or she known that Mr Guo had been given a defective notification and what they think others in the Department would have done. Not only is that evidence irrelevant to the question posed by the relevant counterfactual, it is extremely speculative.
228 A submission was also put for Mr Guo that Fernando [2014] FCAFC 181 was wrongly decided.
229 I consider that Fernando [2014] FCAFC 181 is distinguishable on the facts but I nevertheless conclude that the requirement of causation, requires the conclusion on the facts of this case, that if the Commonwealth had not falsely imprisoned Mr Guo it would have lawfully imprisoned Mr Guo for the entirety of the period for which he was unlawfully detained and in precisely the same circumstances. As a result, only nominal damages are recoverable. I consider this necessarily follows from the statutory provisions as they applied to Mr Guo’s circumstances.
230 First, Mr Guo’s application for a permanent visa had been refused on character grounds in 1996.
231 Second, there is no question that the provisions of the Act discussed above meant that if Mr Guo was notified as required, of this decision, the effect would be to bring his temporary entry permit to an end, by reason of which he would be an unlawful non-citizen. Any officer aware of these circumstances would necessarily have a reasonable suspicion that Mr Guo was an unlawful non-citizen and be bound to detain him.
232 Third, the Commonwealth, via the Department, purported to notify Mr Guo of the decision to refuse his permanent visa application. Had all correct procedures been followed (as per Lumba at [253]) Mr Guo’s temporary entry permit would have ceased. It is the fact that correct procedures were not followed (the notice did not correctly identify the time period for review) that meant that Mr Guo remained a lawful non-citizen. That fact is central to the commission of the tort. Damages are to be assessed on the basis that Mr Guo is entitled to be compensated by being put in the position he would have been in had the tort not occurred. On that basis, the notice would have stated the correct time period.
233 Fourth, Mr Guo in fact exercised his right to apply for refusal of his permanent visa application. There is no reason to infer that the tort had any effect on the fate of this application. The application was dismissed on 3 November 2007 because Mr Guo failed to appear. Mr Guo’s attempt to reinstate the application was refused on 9 July 2004 (Guo and Minister for Immigration and Multicultural Affairs [2004] AATA 729). An application for judicial review of the Tribunal’s decision was dismissed on 10 December 2004 (Guo v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1585).
234 Fifth, by 2012 Mr Guo’s bridging visa had expired, and he was precluded from applying for another visa by s 501E of the Act.
235 Accordingly, had the tort not occurred, Mr Guo would have been lawfully detained when his location came to the attention of the Department in February 2012 and would thereafter have remained in detention as an unlawful non-citizen. This is because he would have held no visa at that time, his bridging visa having expired on 1 July 2011 (granted to enable various applications to be resolved) and his temporary entry permit, on this analysis, having ceased in October 1996 on effective notification of the refusal of his application for a permanent visa.
236 From this it follows that Mr Guo is also not entitled to any aggravated damages which are founded on the same compensatory principle as ordinary damages (Fernando [2014] FCAFC 181 at [97]). Exemplary damages, which are intended to punish a defendant’s morally reprehensible action (Uren v John Fairfax & Sons Pty Limited (1966) 117 CLR 118, at 149), are in a different category. It was acknowledged for Mr Guo that the remedy is an exceptional one generally serving to punish a defendant for “conscious wrongdoing in contumelious disregard of another’s rights” (Whitfield v De Lauret and Company Limited (1920) 29 CLR 71 at 77, Gray v Motor Accident Commission [1998] HCA 70; (1998) 196 CLR 1 at [14]).
237 For the period from 12 August 2014 (in fact, 14 August 2014 when the application to the High Court was served) to 26 September 2014 I have found that any continuing suspicion that Mr Guo was an unlawful non-citizen was not reasonable for reasons separate from and additional to the balance of his first period of detention. However, the actions of the officers or, to be accurate, their lack of action in falling to check Mr Guo’s status for themselves immediately for the period of six weeks was not in conscious disregard of Mr Guo’s rights. At worst, it appears to have been based on ignorance of legal obligations or an incorrect view that as long as legal advice was not yet obtained Mr Guo could continue to be detained. While concerning, the conduct was not morally reprehensible. It was not in conscious disregard of Mr Guo’s rights. Rather, the disregard appears to have resulted from unconsciousness or lack of awareness.
238 For the period from 4 or 5 until 6 March 2015 the position is different. Those involved in this episode knew by the evening of 5 March 2015 that the second notification letter was defective but did not take any step to ensure that Mr Guo was immediately released. Rather, Mr Guo continued to be detained until 6 March 2015 when a fresh notice was served, rendering him liable to lawful detention. It is apparent that the solicitors for the Department received the letter from Mr Guo’s solicitors explaining why the second notification letter was defective on 4 March 2015. That letter was in the hands of the Department’s legal officers by 11.16 am on 5 March 2015, as at that time a lawyer sent an email (which is subject to a claim for legal professional privilege) about Mr Guo. It is apparent from the email communications within the Department that it was recognised by some time on 5 March 2015 (and, from the communications, before 7.23pm) that the second notification letter was defective, the inevitable consequence of which was that Mr Guo continued to hold a temporary entry permit. Instead of arranging Mr Guo’s immediate release the energies of the Department were focused on preparing a third notification letter to be served on Mr Guo while he remained in detention. The only officer to express any apparent concern about Mr Guo continuing to be detained was Mr Campbell. He was right to do so. I infer that the personnel in the Department involved in these events knew by the evening of 5 March 2015 that Mr Guo was a lawful non-citizen and not liable to be detained. He should have been released immediately. He was not released but served with the third notification letter at 4.05pm on 6 March 2015. Mr Guo thus continued to be unlawfully detained by the Commonwealth for at least 21 hours in circumstances where it must have been known by a number of Departmental personnel including the Director/Principal Legal Officer of the Framework and Training Section, who did not give evidence, that this was unlawful.
239 I am satisfied that this constituted a knowing, deliberate and flagrant disregard of Mr Guo’s rights. I do not agree that it was necessary for it to be expressly put in cross-examination to the officers involved who did give evidence, such as Mr Dwyer, that this conduct would found a claim for exemplary damages. The person who clearly knew Mr Guo was being unlawfully detained, the then Director/Principal Legal Officer of the Framework and Training Section, was not called to give evidence. Mr Dwyer, who was copied into the emails, could not recall when he read them. Mr Dwyer accepted that the Department knew on the evening of 5 March 2015 that Mr Guo was being unlawfully detained and should be released as soon as possible. The Commonwealth called no evidence explaining why he was not released that evening or the following morning. The obvious inference, which I draw, is that it was decided by officers including the Director/Principal Legal Officer of the Framework and Training Section, that it was expedient to continue to unlawfully detain Mr Guo to enable the third notification letter to be prepared. This was conscious wrongdoing. It was in flagrant disregard of Mr Guo’s rights. It merits an award of exemplary damages.
240 The Commonwealth noted that in Okwume the applicant was awarded $5000 for one night’s unlawful imprisonment which included the initial shock of arrest. In Mr Guo’s case he was already in detention and liable to be detained at any time if correctly notified of the refusal of his application for a permanent visa. These facts may be acknowledged but I consider them in a different light from the Commonwealth to the extent exemplary damages are in issue. The Commonwealth knew that it had detained Mr Guo when he was not an unlawful non-citizen for two years between 2012 and 2014. As at the evening of 5 March 2015 it knew it had detained him yet again for three months when he was not an unlawful non-citizen. Its officers, I infer, knowingly and in conscious disregard of Mr Guo’s rights, chose expediency for the Department above the rule of law and the right of the individual to be imprisoned only with lawful justification. That choice was reprehensible. It justifies an award of damages which achieves the objects of both punishment and deterrence. It is of the utmost importance that those in positions of such power always choose the law over expediency; to make the choice of expediency when the liberty of an individual is at stake must not be permitted. The primacy of the rule of law over any such consideration must be safeguarded and vindicated by an award which achieves the dual objects of punishment and deterrence. Even in the case of a person such as Mr Guo, who garners little personal sympathy given his choices in life and patterns of anti-social and criminal conduct by which he squandered the opportunity to make a positive contribution to Australian society, the rule of law must remain paramount.
241 I consider that an amount of $35,000 is necessary to achieve these objectives in the circumstances of this case.
242 If my conclusions above about nominal damages otherwise being applicable are incorrect then I would also need to assess general damages and aggravated damages. I do so briefly given that my primary conclusions are that no such damages are payable. Apart from the facts already noted, part of the case for Mr Guo was that he did not receive adequate mental health care while detained and his mental health deteriorated. This involved competing evidence from Dr Lewin, a psychiatrist, and Ms Lander, a psychologist. Dr Lewin diagnosed Mr Guo as suffering from a delusional disorder which was not exacerbated by detention (but more likely caused or exacerbated by earlier drug use). Ms Lander diagnosed Mr Guo as suffering from an adjustment disorder and depression which were exacerbated by his detention. Dr Lewin explained that the reason he would not also diagnose an adjustment disorder and depression is that delusional disorder is a higher order diagnosis (which subsumes all lower order symptoms), it also being essential to recognise that most (perhaps all) people are anxious and suffer some degree of depressed mood while incarcerated. Dr Lewin accepted that, as with nearly everyone, Mr Guo suffered because he was incarcerated but concluded that his symptoms would not warrant psychiatric diagnosis or treatment.
243 To the extent necessary to say so Dr Lewin’s evidence was far more persuasive than that of Ms Lander. Dr Lewin has extensive experience in dealing with the psychiatric conditions of imprisoned persons, Ms Lander does not have equivalent experience. Dr Lewin had the advantage of an accurate case history, Ms Lander did not. The inaccuracies in the version of events which Mr Guo appears to have provided to Ms Lander were significant. Indeed, the impression Ms Lander had of Mr Guo’s life history in Australia before 2012 appears to have been largely inaccurate. She did not know about his prior drug use. She did not know about his prior criminal history. She did not know about his prior experiences of detention, both in prison and immigration detention. She assumed his life before 2012 exhibited a degree of conventional success and stability, based on information Mr Guo had given her, which it did not. Contrary to the information on which Ms Lander relied, as Dr Lewin said, Mr Guo’s earlier life involved a pattern of disturbance including use of the drug ice in his mid-50s which was a “red flag” for an existing disturbance, as was his history of anti-social conduct.
244 I accept Dr Lewin’s evidence. This does not mean that I consider that Mr Guo did not suffer anxiety, loneliness, isolation and low mood in detention. However, I consider that his suffering was typical of any person who is detained. Mr Guo may well have suffered from a psychiatric condition known as a delusional disorder (a belief that he had been the victim of malicious conduct by a police officer many years previously, which appeared to be false) but, as Dr Lewin said, this was a fixed belief which was “encapsulated”, meaning it did not apparently affect any component of Mr Guo’s functioning. Further, being detained did not cause this fixed belief (the belief pre-dated these periods of detention) and did not exacerbate it. The belief remained encapsulated.
245 It was submitted for Mr Guo that:
Assessing damages in false imprisonment cases is a difficult exercise, not only for the reasons given by Hodgson JA in Riley, but also because, as Spigelman CJ said in Ruddock v Taylor (2003) 58 NSWLR 269 at 279 [49] (Ruddock (NSWCA)), “[d]amages for false imprisonment cannot be computed on the basis that there is some kind of applicable daily rate”. His Honour went on to say that, while a “substantial proportion” of the ultimate award must be given for what has been described as “the initial shock of being arrested”, as the term of imprisonment extends “the effect upon the person falsely imprisoned does progressively diminish.” This may not be correct in every case, however, and assessment must take into account the particular circumstances. Here, there is evidence of a psychological condition having developed as a consequence of detention.
246 But for the last sentence being inapplicable given my conclusions above, I accept this submission. Further, it is relevant to note that in State of New South Wales v Riley [2003] NSWCA 208; (2003) 57 NSWLR 496 at [131] this was said:
It is extremely difficult to quantify damages for hurt feelings. In cases of hurt feelings caused by ordinary wrong-doing, of a kind consistent with ordinary human fallibility, the court must assess damages for hurt damages neutrally, and aim towards the centre of the wide range of damages that might conceivably be justified. However, in cases of hurt to feelings caused by wrong-doing that goes beyond ordinary human fallibility, serious misconduct by the defendant has given rise to a situation where it is difficult to quantify appropriate damages and thus where the court should be astute to avoid the risk of under-compensating the plaintiff, so the court is justified in aiming towards the upper limit of the wide range of damages which might conceivably be justified.
247 In the present case, if I am incorrect about only nominal and exemplary damages being recoverable for the period of the evening of 5 March to 4.05pm on 6 March, then (apart from that period), this is a case where ordinary human fallibility caused Mr Guo’s unlawful imprisonment. For Mr Guo it was submitted that the general damages ought to be assessed having regard to a number of factors including the following which I would generally accept:
(1) the unlawful arrest and deprivation of liberty from 29 February 2012 to 26 September 2014 (a period of 940 days) and the unlawful arrest and deprivation of liberty from 3 December 2014 to 6 March 2015 (a period of 93 days); and
(2) Mr Guo suffered hurt or injured feelings, indignity, mental distress, disgrace or humiliation as a result of the deprivation of liberty caused by regular pat-down searches, frequent searches of his room, seizure of medication, confiscation of his mobile telephone, which contained a photograph of one of Mr Guo’s sons and had sentimental value to him, denial of certain visits and information, and being separated from his son during his son’s suicide attempts.
248 In respect of the matters noted in sub paragraph (2) above, however, I also accept the Commonwealth’s submission that these were ordinary incidents of being held in immigration detention. There is no evidence that any action was taken or not taken other than in the ordinary course of the management of Mr Guo’s detention. I do not accept that it was inappropriate for Mr Guo to have been held in maximum security. Given Mr Guo’s history, and the information which indicated his potential involvement in organised crime relating to drugs and his time in prison, it was reasonable for Mr Guo to be detained in a maximum security setting.
249 As discussed I do not accept Mr Guo was handcuffed on 3 December 2014. Nor do I accept that he did not receive adequate mental health treatment while being detained.
250 The submissions for Mr Guo noted the following examples:
a) In Goldie (No 2), French J awarded Mr Goldie $22,000 for having been detained for three days. That award comprised $5,000 for wrongful arrest, $2,000 for conduct during the detention and $15,000 for the deprivation of liberty (including an allowance for the continuing humiliation and indignity associated with the detention).
b) In Ruddock (NSWCA), Mr Ruddock [sic, Mr Taylor] was awarded $116,000 in general damages for a period of 316 days in detention. (The award was overturned on appeal but not because of any error in assessment.)
c) In Nye v State of New South Wales [2004] Aust Torts Reports 81-725, Mr Nye was awarded general damages of $100,000 in respect of a period of 16 months’ detention.
d) In Fernando v Commonwealth of Australia (No 5) [2013] FCA 901, on the hypothesis that Mr Fernando was entitled to more than nominal damages, Siopis J would have awarded $265,000 for 1,203 days in unlawful detention. It should be noted that his Honour had awarded exemplary damages in the amount of $25,000.
251 It was also submitted that a substantial proportion of the ultimate award ought to be given for “the initial shock of being arrested” [Thompson v Commissioner of Police of the Metropolis [1998] QB 498 at 515 per Lord Woolf MR, cited by Spigelman CJ in Ruddock v Taylor (2003) 58 NSWLR 269 at 279 [49]. See also Goldie v Commonwealth of Australia (No 2) (2004) 81 ALD 422 at 428 [16] per French J; Fernando v Commonwealth of Australia (No 5) [2013] FCA 901 at [108] per Siopis J], particularly in respect of the arrest on 3 December 2014, which “came completely out of the blue”. While the principles may be accepted Mr Guo was already in custody when he was first detained. Further, it is not the case that Mr Guo believed his temporary entry permit remained in force due to the errors discussed in this case. The errors appear to have been discovered by Mr Guo’s lawyers. Mr Guo knew he had been refused a permanent visa on the grounds of not having good character. He held a bridging visa to enable various applications to be pursued which he knew expired in 2011. As far as Mr Guo was concerned, he must have thought he did not hold a valid visa from that time. As such, immigration detention could not have been out of any reasonable apprehension of his circumstances. Nor is it apparent to me why his detention on 3 December 2014 came “out of the blue” when he knew his permanent visa application had been refused and knew that it was only an error in the first notification letter which meant he had to be released from detention in 2014. A moment’s thought would have caused Mr Guo to realise that his permanent visa application having been refused and his efforts to obtain another visa having already been exhausted, he was liable to proper notification of the refusal of his application for a permanent visa from 1996 which would bring his temporary entry permit to an end. Given that his application for a permanent visa had been refused on character grounds, there was no reason to imagine that no step would be taken to complete the statutory process by giving him proper notification of the 1996 decision. Indeed, it was necessary and inevitable that the Commonwealth would try to achieve proper notification because this would complete the process as the Act required at all times from the date the refusal decision was made in 1996.
252 If, contrary to my conclusions, the compensatory principle does not confine Mr Guo to nominal damages (and exemplary damages for the confined period of the evening of 5 March to 2015 to the afternoon of 6 March 2015) then general damages are to be assessed with regard to the above matters.
253 I note that in Fernando [2014] FCAFC 181 Besanko and Robertson JJ at [113] characterised the primary judge’s award of general damages of $265,000 for 1,203 days in unlawful detention to be low, but not so low as to involve error. In common with Mr Guo’s first period of detention, Mr Fernando was detained whilst in custody (at the end of his prison sentence) so the shock of further detention, such as it was, occurred in a setting of imprisonment. Despite having commenced proceedings to have the decision cancelling his visa set aside on 2 October 2003 the Minister did not consent to an order setting aside the cancellation until 24 January 2007. Mr Fernando remained in detention throughout that period, being transferred from Perth to Baxter immigration detention centres.
254 In common with Siopis J in Fernando v Commonwealth of Australia (No 5) I do not consider Mr Guo’s case analogous to that of Mr Nye in Nye v New South Wales [2003] NSWSC 1212 where the circumstance of Mr Nye’s arrest (at home, in bed at night, 40 police officers in assault gear, a helicopter overhead, handcuffed and taken from his house in his pyjamas, with shouting, physical aggression and coarse language used, including the handcuffing of Mr Nye’s wife) were correctly described as “likely to strike terror into the heart of almost any person” (Fernando v Commonwealth of Australia (No 5) at [113]). It is also relevant that Mr Nye was acquitted of the charges of murder and conspiracy to supply cannabis resin (brought on the basis of fundamentally flawed informer information), having spent six months in prison awaiting trial. Mr Nye, who suffered permanent psychiatric injury as a result, was awarded $387,500 as damages for false imprisonment, in addition to damages for malicious prosecution.
255 Also in common with Siopis J in Fernando v Commonwealth of Australia (No 5) I consider the following observations to be relevant (at [122]):
Further guidance on the quantum of damages for loss of liberty for a long period arising from wrongful imprisonment can be obtained from the case of Ruddock (NSWCA). In that case at first instance, Taylor v Ruddock (unreported, District Court of New South Wales, Murrell DCJ, 18 December 2002) (Ruddock (NSWDC)) the New South Wales District Court awarded the plaintiff, Mr Taylor, the sum of $116,000 in damages in respect of wrongful imprisonment, consequent upon his detention following the cancellation of his permanent residency visa on character grounds. Mr Taylor was detained for two separate periods. The first period was for 161 days and the second period for 155 days. In that case, because Mr Taylor’s convictions were in relation to sexual offences against children, Mr Taylor was detained in a state prison under a “strict protection” regime, and not in an immigration detention centre. The detention regime to which Mr Taylor was subjected in the state prison was described as a “particularly harsh one”.
256 I note, however, that in Ruddock v Taylor (2003) 58 NSWLR 269; [2003] NSWCA 262 Spigelman CJ considered the award to be “modest”, requiring serious consideration to be given to the question whether it was inadequate (at [47]). Spigelman CJ noted at [48] that:
The period for which the Respondent was deprived of his liberty was a very long one. In Spautz [Spautz v Butterworth (1996) 41 NSWLR 1] this Court, allowing an appeal against inadequacy, decided that an appropriate award of general damages was $75,000 for a person who was imprisoned for 56 days. The Respondent's period of detention, much of it in prison, was for two periods of 161 and 155 days. Obviously there are differences in the situations between Dr Spautz and the Cross-Appellant.
257 In Spautz Clarke JA considered damages for false imprisonment, referring to McGregor on Damages at 14-15 in these terms:
McGregor on Damages, 15th ed (1988) par 1619 says:
The details of how damages are worked out in false imprisonment are few: generally it is not a pecuniary loss but a loss of dignity and the like, and is left much to the jury's or judge's discretion. The principal heads of damage would appear to be the injury to liberty, ie. the loss of time considered primarily from a non-pecuniary viewpoint, and the injury to feelings, ie. the indignity, mental suffering, disgrace and humiliation, with any attendant loss of social status. This will all be included in the general.
258 At 18 Clarke JA (with whom Priestley and Beazley JJA agreed) said:
Having regard to those factors and the fact that the appellant had no criminal record when he was unceremoniously cast into a prison in which he was to remain for fifty-six days it seems to me that an appropriate award of general damages is $75,000 (to include the sum of $200 for economic loss).
259 Mr Guo was falsely imprisoned for a total of 1033 days, in two periods of 940 and 93 days each. He had been imprisoned previously. His first period of detention involved an arrest whilst in custody, but his second was effected while he was at home. On both occasions, he was not in the position of a person from whom being detained as s suspected unlawful non-citizen would be a shock. While Mr Guo was shocked, as I have said, a moment’s reasonable thought would have caused him to realise he was highly likely to end up in immigration detention after his bridging visa expired in mid-2011. This said, on the current hypothesis, he is entitled to be compensated for a lengthy period of false imprisonment. Having regard to the decisions referred to and the particular circumstances of Mr Guo’s case if he is entitled to more than nominal damages I would assess general damages including for all hurt, indignity, shock from all the facets of his detention in the sum of $380,000.
260 This leaves the question of aggravated damages. In Spautz Clarke JA also dealt with the issue of aggravated damages in a false imprisonment case. At 15 Clarke JA referred to the observations of Lord Diplock in Cassell & Co Ltd v Broome [1972] AC 1027 at 1124 about:
Additional compensation for the injured feelings of the plaintiff where his sense of injury resulting from the wrongful physical act is justifiably heightened by the manner in which or the motive for which the defendant did it. This Lord Devlin calls ‘aggravated damages’
261 At 16 Clarke JA again referred to McGregor on Damages (par 1623) as follows:
The manner in which the false imprisonment is effected may lead to the aggravation or mitigation of the damage, and hence of the damages…
262 At 17-18 Clarke JA said:
The necessary conclusion is that where a plaintiff is entitled to compensatory damages for wrongful arrest or false imprisonment, it is proper for the Court, in assessing ordinary compensatory damages, to take into account the whole of the conduct of the defendant to the time of verdict which may have the effect of increasing the injury to the person's feelings. Such matters might include the absence of apology and the reaffirmation of the truth of the matters. However, for a plaintiff to be entitled to aggravated damages, he or she must show that the conduct of the defendant was neither bona fide nor justifiable.
263 I am not satisfied that any aspect of Mr Guo’s imprisonment or of the Commonwealth’s conduct, other than Mr Guo’s detention between the evening of 5 March and the afternoon of 6 March 2015 for which an award of exemplary damage has been made, constitutes conduct of a kind to justify an award of aggravated damages.
13. Conclusions
264 Mr Guo was falsely imprisoned by the Commonwealth. He should be awarded nominal damages in the sum of $1.00 and exemplary damages in the sum of $35,000 for the period between the evening of 5 March 2015 and the afternoon of 6 March 2015. I propose to ask the parties to submit agreed or competing orders within seven days so that each may consider if any submission about the provisions of the Civil Liability Act is necessary or not.
I certify that the preceding two hundred and sixty-four (264) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Jagot. |
Associate:
