Federal Court of Australia

Commonwealth of Australia v MZZHL [2021] FCAFC 191

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be allowed.

2.    The orders dated 7 June 2021 be set aside and in lieu thereof it be ordered that:

(a)    the originating application be dismissed; and

(b)    the applicant is to pay the respondent’s costs, save for the costs of the hearing, as agreed or taxed.

3.    Within 14 days hereof, the respondent is to refund to the Commonwealth $350,000, being the amount of damages he received pursuant to the Court’s orders dated 7 June 2021.

4.    The respondent pay the appellant’s costs of the appeal, as agreed or taxed.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

THE COURT:

1    This appeal is from the judgment and orders which are published as MZZHL v Commonwealth of Australia [2021] FCA 600 (MZZHL at first instance).

2    It will be necessary to describe the relevant background matters at greater length, however, for these introductory purposes the following salient matters are noted. The respondent (who has the pseudonym MZZHL) arrived in Australia in May 2012 as an unauthorised maritime arrival. He was detained under s 189(3) of the Migration Act 1958 (Cth). In May 2013, he was granted a bridging visa. After that visa expired in June 2014, the respondent lived for a period in the community without a visa (i.e. as an unlawful non-citizen). On 10 August 2018, he was taken into immigration detention again under s 189 of the Migration Act.

3    MZZHL commenced proceedings in the Court in October 2020. He sought damages and an order in the nature of a writ of habeas corpus, claiming that he had been unlawfully detained. A few days before the trial below, the Commonwealth conceded that, from 13 March 2019, its officers had not complied with the duty to remove the respondent from Australia as soon as reasonably practicable as required by s 198 of the Migration Act. On the first day of the trial (4 May 2021), the respondent was granted a bridging visa under s 195A of the Migration Act and released from detention. That visa was due to expire on 4 November 2021 but the Court was informed that on 28 October 2021 MZZHL was granted a three-month s 195A bridging visa.

4    The primary judge held that MZZHL had been detained without statutory authority from mid-2019 until 4 May 2021. Damages were awarded in the sum of $350,000 on the basis that, absent his unlawful detention, the respondent would otherwise have been at liberty in the Australian community.

The primary judge’s reasons for judgment summarised

5    The primary judge addressed the issue of whether MZZHL had been lawfully detained with reference to the following three separate periods:

(a)    August 2018 to October 2018;

(b)    October 2018 to March 2019; and

(c)    March 2019 to May 2021.

6    As noted above, the Commonwealth’s concession that there had been non-compliance with s 198 applied only to the period after March 2019 and involved an acknowledgment by the Commonwealth that “steps should have been taken to inquire of Iraq whether or not it would be prepared to receive involuntary removals”.

7    With respect to the first period, the primary judge concluded that the respondent was lawfully detained during that period because active steps were taken then to secure his removal from Australia, as required by s 198 (at [38]).

8    With respect to the second period, the primary judge stated at [39] that the respondent’s continued detention after October 2018 was changed because the respondent had made a request in writing on 26 October 2018, pursuant to s 198(1), to be removed from Australia. This triggered a statutory obligation under s 198(1) to remove the respondent as requested “as soon as reasonably practicable”.

9    The primary judge noted that the respondent’s written request was withdrawn on 13 March 2019. For reasons provided by the primary judge at [41] to [44], his Honour concluded that the respondent’s detention during the second period was lawful, largely on the basis of findings that reasonable steps were taken during that period to remove the respondent from Australia.

10    The focus of the appeal was on the primary judge’s finding that the respondent was unlawfully detained during the third period. His Honour identified the central question relating to this period as whether the Commonwealth had taken reasonable steps during this period to remove the respondent from Australia. His Honour’s conclusion on this question is reflected at [47] of his reasons for judgment:

Unlike the two earlier periods of detention, it has been concluded for the period of detention between March 2019 and the granting of the May 2021 visas that:

•    the Respondent was not only taking no steps to secure or attempt to secure the removal of the Applicant from Australia, be it voluntary or involuntary removal, but had abandoned any attempt to undertake any such steps.

Given that finding of fact, it has been further concluded that:

•    the detention subsequent to March 2019 up until the May 2021 visas was “unlawful”; and

•    there was no lawful authority vested in the Commonwealth to continue to detain the Applicant, and he should have been released from detention soon after March 2019 or (at the very latest) by mid-2019.

This last conclusion requires consideration to be given to:

•    the authority conferred by (in particular) ss 189 and 196; and

•    the decision in AJL20.

Separately considered are questions as to the quantification of the damages to which the Applicant is entitled.

11    The detailed findings of fact which underpinned the primary judge’s conclusion that the respondent’s detention was unlawful during the third period are set out at [48] to [68] of the reasons for judgment. In brief, the significant findings of fact may be summarised as follows:

(a)    during the period from 13 March 2019 to January 2021, no Commonwealth officer undertook any steps to remove the respondent from Australia, or receive, investigate or determine any application for a visa by the respondent to remain in Australia, or determine whether to grant a visa to the respondent; and

(b)    there was no reason to make any different finding of fact for the period between January to May 2021 having regard to the Commonwealth’s concession.

12    There were two paths of reasoning underpinning the primary judge’s conclusion that the respondent had been detained without statutory authority from mid-2019 until 4 May 2020. The first part of reasoning was that, as a matter of statutory construction, the terms “detain” and “detained” in ss 189 and 196 of the Migration Act respectively meant “lawfully detain or detained” as opposed to “detain or detained in fact”.

13    The primary judge’s reasoning in respect of this first path (which his Honour said did not depend upon Bromberg J’s decision in AJL20 v Commonwealth of Australia [2020] FCA 1305; 279 FCR 549 (AJL20 at first instance), which judgment was under appeal to the High Court when the primary judge published his Honour’s reasons in the present matter) is reflected at [82]-[86] of MZZHL at first instance (emphasis in original):

82    Any construction of the term “detain” when employed in ss 189 and 196 to simply mean “detention in fact” – rather than “lawful detention” – is thus a construction which should only prevail if the statutory language clearly dictates that such was the presumed intent of the Commonwealth legislature. In the absence of such a clearly expressed legislative intent, it would be difficult to reach a conclusion that the Commonwealth legislature intended to authorise continued detention which was “unlawful”.

83    The Commonwealth submitted of course that the Legislature had manifested such a clear contrary intention, that intention being made manifest in (for example) the statement of the objects of the Act in s 4(2) and provisions such as s 196(1), and the direction that an unlawful non-citizen “must be kept in immigration detention”. Particular reliance was placed upon s 196(3). But that sub-section provides no reason to depart from such a simple approach to the construction of the term “detain”. Leaving the references in s 196(3) and s 196(1)(a), (aa) or (b) to one side, s 196(3) simply provides that no Court can order the release of an unlawful non-citizen from “lawful detention” unless a visa is granted. The provision, on such an approach, says nothing as to the power of a Court to make an order where the detention is unlawful.

84    Such a simple argument, the Commonwealth accepted, formed no part of the appeal from the decision in AJL20. It thus remained a matter of speculation as to whether the High Court in its reasons for decision in the appeal in that matter would express any views supportive or inconsistent with the approach now suggested.

85    It is thus concluded that ss 189 and 196 conferred no authority to continue to detain the Applicant once the pursuit of any attempt to remove from Australia was (in effect) abandoned by the Commonwealth.

86    There was no authority to continue his detention even though he remained an unlawful non-citizen. He should have been released from detention soon after March 2019.

14    The primary judge’s second path of reasoning involved his Honour, in the interests of judicial comity, following Bromberg J’s reasoning in AJL20 at first instance (noting again that the High Court had not published its reasons for judgment in the appeal in that matter) (see [87] ff).

15    In assessing damages for the respondent’s unlawful detention, his Honour adopted a similar approach to that taken when damages are assessed in respect of a claim of false imprisonment. In identifying the appropriate counter-factual to apply in identifying the position the person would have been in had the unlawful detention not occurred, the primary judge applied the reasoning in Lewis v Australian Capital Territory [2020] HCA 26; 94 ALJR 740. His Honour concluded that the appropriate counter-factual is that the respondent would have been at liberty and released from detention soon after March 2019 (and by no later than mid-2019) because either (at [105]):

(a)    he should have been released because there was no authority thereafter to continue his detention; or

(b)    had the Minister given consideration to the respondent’s case soon after March 2019, he would have granted him a visa (even though a Ministerial decision was made in January 2021 not to intervene pursuant to s 195A of the Migration Act).

16    In assessing the respondent’s damages in the amount of $350,000, the primary judge said that he had applied relevant principles from cases such as Guo v Commonwealth of Australia [2017] FCA 1355; 258 FCR 31 and Fernando v Commonwealth of Australia [2014] FCAFC 181; 231 FCR 251.

Relevant provisions of the Migration Act

17    It is desirable to set out some relevant provisions of the Migration Act.

18    The overall object of the Migration Act is set out in s 4:

4 Object of Act

(1)    The object of this Act is to regulate, in the national interest, the coming into, and presence in, Australia of non-citizens.

(2)    To advance its object, this Act provides for visas permitting non-citizens to enter or remain in Australia and the Parliament intends that this Act be the only source of the right of non-citizens to so enter or remain.

(3)    To advance its object, this Act provides for non-citizens and citizens to be required to provide personal identifiers for the purposes of this Act or the regulations.

(4)    To advance its object, this Act provides for the removal or deportation from Australia of non-citizens whose presence in Australia is not permitted by this Act.

(5)    To advance its object, this Act provides for the taking of unauthorised maritime arrivals from Australia to a regional processing country.

19    Section 5 defines the term “detain” as meaning:

(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.

20    Section 189(1) imposes an obligation on an officer in specified circumstances to detain an unlawful non-citizen:

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.

21    Section 196 addresses the duration of the period within which an unlawful non-citizen detained under s 189 must be kept in immigration detention. It relevantly provides:

196 Duration of detention

(1)    An unlawful non-citizen detained under section 189 must be kept in immigration detention until:

   (a)    he or she is removed from Australia under section 198 or 199; or

(aa)    an officer begins to deal with the non-citizen under subsection 198AD(3); or

   (b)    he or she is deported under section 200; or

   (c)    he or she is granted a visa.

…

(3)    To avoid doubt, subsection (1) prevents the release, even by a court, of an unlawful non-citizen from detention (otherwise than as referred to in paragraph (1)(a), (aa) or (b)) unless the non-citizen has been granted a visa.

22    Section 198 deals with the removal of an unlawful non-citizen from Australia. It relevantly provides:

198 Removal from Australia of unlawful non-citizens

Removal on request

(1)    An officer must remove as soon as reasonably practicable an unlawful non-citizen who asks the Minister, in writing, to be so removed.

…

Removal of unlawful non-citizens in other circumstances

(2)    An officer must remove as soon as reasonably practicable an unlawful non-citizen:

(a)    who is covered by subparagraph 193(1)(a)(i), (ii) or (iii) or paragraph 193(1)(b), (c) or (d); and

   (b)    who has not subsequently been immigration cleared; and

   (c)    who either:

(i)    has not made a valid application for a substantive visa that can be granted when the applicant is in the migration zone; or

(ii)    has made a valid application for a substantive visa, that can be granted when the applicant is in the migration zone, that has been finally determined.

…

(6)    An officer must remove as soon as reasonably practicable an unlawful non-citizen if:

   (a)     the non-citizen is a detainee; and

(b)    the non-citizen made a valid application for a substantive visa that can be granted when the applicant is in the migration zone; and

   (c)    one of the following applies:

(i)     the grant of the visa has been refused and the application has been finally determined;

   (ii)    the visa cannot be granted; and

(d)    the non-citizen has not made another valid application for a substantive visa that can be granted when the applicant is in the migration zone.

…

23    Section 195A confers a personal and non-compellable power on the Minister to grant a visa to a person who is in immigration detention. It relevantly provides:

195A Minister may grant detainee visa (whether or not on application)

Persons to whom section applies

(1)    This section applies to a person who is in detention under section 189.

Minister may grant visa

(2)    If the Minister thinks that it is in the public interest to do so, the Minister may grant a person to whom this section applies a visa of a particular class (whether or not the person has applied for the visa).

(3)    In exercising the power under subsection (2), the Minister is not bound by Subdivision AA, AC or AF of Division 3 of this Part or by the regulations, but is bound by all other provisions of this Act.

Minister not under duty to consider whether to exercise power

(4)    The Minister does not have a duty to consider whether to exercise the power under subsection (2), whether he or she is requested to do so by any person, or in any other circumstances.

Minister to exercise power personally

(5)    The power under subsection (2) may only be exercised by the Minister personally.

…

The grounds of appeal

24    The Commonwealth raised the following four grounds of appeal (without alteration).

(1)    The primary judge erred in concluding that ss 189(1) and 196(1) of the Migration Act 1958 (Cth) did not authorise the respondent’s detention until he was in fact removed under s 198(6) of the Migration Act 1958 (Cth).

(2)    The primary judge erred in concluding that the purpose of the respondent’s detention was not his removal from Australia as soon as reasonably practicable.

(3)    Assuming (which is denied) the respondent was entitled to an award of damages, the primary judge erred in concluding that the relevant counterfactual was the grant of a visa and/or release into Australian community by no later than mid-2019.

(4)    Assuming (which is denied) the respondent was entitled to an award of damages, the primary judge erred in awarding substantial damages when the respondent should have been limited to nominal damages only.

25    The parties agreed that grounds 3 and 4 need not be determined if the Commonwealth succeeded under either ground 1 or ground 2.

26    For the following reasons, grounds 1 and 2 are upheld.

Consideration and determination

27    The Commonwealth submitted that grounds 1 and 2 had to be upheld in light of the majority decision of the High Court in Commonwealth of Australia v AJL20 [2021] HCA 21; 95 ALJR 567 (AJL20 High Court). That submission should be accepted.

28    The majority (Kiefel CJ, Gageler, Keane and Steward JJ) emphasised at [14] the dichotomy between lawful non-citizens (i.e. those who hold a valid visa) and unlawful non-citizens (i.e. those without a valid visa) in the statutory scheme constituted by ss 189, 196 and 198. These provisions operate to prevent an unlawful non-citizen from entering the Australian community. The majority held that an unlawful non-citizen detained under s 189 must be detained until the occurrence of one of the events specified in s 196(1).

29    It is desirable to set out [34]-[35] and [47]-[48] of the majority’s reasons for judgment which explain the operation of the statutory scheme in both a constitutional and administrative law sense (footnotes omitted and emphasis added):

34    The duration of the detention required and authorised by s 196(1) is, as Hayne J said in Al-Kateb, “fixed by reference to the occurrence of any of [the four] specified events. Detention must continue ‘until’ one of those events occurs.”

35    The combined effect of ss 189(1) and 196(1) is that a non‑citizen can be lawfully within the Australian community only if he or she has been granted a visa. Otherwise, an unlawful non‑citizen must be detained until such time as he or she departs Australia by one of the means referred to in s 196(1), relevantly in this case removal under s 198. That removal is to be effectuated by the performance of the duty that s 198(6) places on officers of the Commonwealth to remove “as soon as reasonably practicable”. This view of the relationship between s 196 and s 198 has consistently been accepted and applied in the Federal Court.

…

47    The primary judge noted that the plurality in Plaintiff M96A said, in relation to the event listed in s 196(1)(a), that “it is a condition that removal must occur as soon as reasonably practicable”. His Honour took this statement to support the view that the detention of an unlawful non‑citizen ceases to be authorised by the Act immediately, where there has been a delay in the Executive’s performance of the duty imposed by s 198. The respondent sought to rely upon the reasoning of Brennan, Deane and Dawson JJ in Lim in support of much the same proposition. The respondent’s contention was to the effect that only where the Executive properly performs the duties that establish the legitimate non‑punitive purposes of the Act can the unlawful non-citizen’s detention ordained by the Parliament be reasonably capable of being seen as necessary for legitimate non‑punitive purposes.

48    Neither Plaintiff M96A nor Lim suggests that the operation of s 189(1) is conditioned upon s 198(6) in this manner, either as a matter of ordinary construction or in order to preserve its constitutional validity. When read in the context of the observation that “detention in Australia will conclude if any of the various preconditions [in s 196(1)] are met”, the statement of the plurality in Plaintiff M96A does not suggest that the authority and duty to detain imposed by s 189(1) disappears immediately upon delay in the performance of the hedging duty in s 198(6). Nor can one discern in, or attribute to, the plurality’s statement in Plaintiff M96A or the reasoning in Lim (or the passages in Plaintiff S4 to which reference has been and will be made) any adherence to the heresy that, where a law is within the Parliament’s competence because of the imposition of duties on officers of the Executive, delay in performance of those duties by those officers can take the law outside Parliament’s competence. A failure by the Executive diligently to perform the duties that give effect to the legitimate non-punitive purposes for which detention is authorised and required by the Act erases neither those duties nor the statutory purposes which those duties support. Were it otherwise, the supremacy of the Parliament over the Executive would be reversed and the rule of law subverted.

30    After analysing earlier High Court authorities, including Plaintiff M96A/2016 v Commonwealth of Australia [2017] HCA 16; 261 CLR 582; Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs [1992] HCA 64; 176 CLR 1; Plaintiff S4/2014 v Minister for Immigration and Border Protection [2014] HCA 34; 253 CLR 219 and Al-Kateb v Godwin [2004] HCA 37; 219 CLR 562, the majority held that the operation of ss 189(1) and 196(1) is not conditional upon compliance with s 198(6), either as a matter of ordinary statutory construction or in order to preserve its constitutional validity. Their Honours said at [51] (emphasis in original):

The duty imposed upon officers of the Executive by ss 189(1) and 196(1) of the Act is to detain the unlawful non‑citizen until the occurrence of one of the events referred to in s 196. The duty so imposed by the Act is neither conditional upon, nor co‑extensive with, the intents or purposes of officers of the Executive towards the detainee.

(See also the penultimate sentence of [48] of the plurality’s reasons as set out above at [29].)

31    At [52], the majority made the following important statements with respect to instances where the Executive is dilatory in performing what were earlier described as “the hedging duties” imposed upon it by the statutory regime (footnotes omitted and emphasis added):

Where the Executive is dilatory in performing the hedging duties imposed upon it, as French J observed [in Plaintiff S297/2013 v Minister for Immigration and Border Protection [2015] HCA 3; 255 CLR 231], the remedy of mandamus is available to compel the proper performance of those duties. It is precisely because the hedging duties may be enforced so as to bring the detention of the unlawful non‑citizen to an end that the executive detention authorised and required by ss 189 and 196 can be seen to be within the Parliament’s power under s 51(xix) of the Constitution as limited by the implications of Ch III. These hedging duties are not things written in water. A failure on the part of the responsible officers of the Executive to comply with an order of the court mandating performance of their statutory duties may result in those officers being committed to prison for contempt of court. By this means, judicial power is exercised to give effect to the scheme of the Act, enforcing the supremacy of the Parliament over the Executive.

32    Having regard to the majority’s reasoning in AJL20 High Court, we accept the Commonwealth’s submission that neither the first nor second paths of reasoning adopted by the primary judge can survive.

33    The respondent submitted that AJL20 High Court did not foreclose the first path of reasoning applied by the primary judge in the present proceeding. He contended that that path of reasoning remains sound, despite AJL20 High Court, and continues to be supported by cases such as Plaintiff S4; Plaintiff M61/2010E v Commonwealth of Australia [2010] HCA 41; 243 CLR 319; Plaintiff M76/2013 v Minister for Immigration, Multicultural Affairs and Citizenship [2013] HCA 53; 251 CLR 322 and Plaintiff M79/2012 v Minister for Immigration and Citizenship [2013] HCA 24; 252 CLR 336. For the following reasons, that submission cannot be accepted.

34    First, the respondent has misunderstood Plaintiff S4. It was not a case about detention. Rather it focused on a different question, namely whether s 195A of the Migration Act empowered the Minister to grant a visa which precluded the person from making a valid application for a protection visa in circumstances where the Minister had already commenced considering exercising the personal non-compellable power under s 46A(2) to permit the person to make a valid application for a protection visa. As the majority explained in AJL20 High Court at [70], Plaintiff S4 is properly understood as emphasising:

… why administrative steps that prolonged detention must be taken within the framework of the Act and subject to its implicit temporal limits. Their Honours were not expressing a conclusion that failure to comply with a duty to bring about one of the terminating events in s 196(1) had the consequence that, ipso facto, detention became unlawful.

35    Secondly, as the Commonwealth contended, Plaintiff S4 does not support the primary judge’s reasoning to the effect that, because his Honour held that the Commonwealth was taking insufficient steps to secure or attempt to secure the removal of MZZHL and had “abandoned any attempt to undertake such steps”, this meant that the detention was unlawful. Plaintiff S4 supports the Commonwealth’s contention in the present proceeding that the circumstances here did not establish that there were no enforceable limits on the respondent’s detention. Where the Executive has failed to comply with its statutory duty of removal under s 198, it is open to someone in MZZHL’s circumstances to enforce that obligation through mandamus. As the majority said in AJL20 High Court at [68]:

… Plaintiff S4 does not authorise reasoning from a finding of want of proper diligence in the performance of the duty to remove to a conclusion that some unauthorised punitive purpose is being pursued by the Executive.

And, as noted above, the majority referred earlier at [52] to the remedy of mandamus being available to compel the proper performance of the “hedging duties”, including the duty of removal.

36    The related cases to Plaintiff S4 upon which the respondent relies take the matter no further. First, while reliance was sought to be placed on Hayne J’s dissenting judgment in Plaintiff M79 as providing “context” for his Honour’s views in Plaintiff M76 and the Court’s view in Plaintiff S4, the reasons of the majority in AJL20 High Court proceed on the basis that Plaintiff M76 adds nothing to what was said by the majority in Plaintiff S4 (see at [27] and fn 24).

37    Secondly, although the majority in AJL20 High Court made no express reference to Plaintiff M61, that decision does not support the respondent’s case. In Plaintiff M61, the Court rejected the proposition that immigration detention could be prolonged by the Executive absent a statutory authorisation. The rejection of that proposition occurred with reference to the period prior to the Minister deciding whether or not to consider the exercise of any of his or her non-compellable powers. The Court found, however, that in the circumstances in Plaintiff M61 the process of consideration had in fact begun when the Minister announced the implementation of the Refugee Status Assessment and Independent Merits Review procedures regarding a particular group of unlawful non-citizens (see at [66] and [67]).

38    We accept the Commonwealth’s submission that Plaintiff M61 does not assist in determining whether MZZHL’s detention was authorised and required by ss 189 and 196 of the Migration Act. Rather, Plaintiff M61 stands for the proposition that immigration detention is not authorised for an indeterminate period whilst consideration is given to whether an unlawful non-citizen meets ministerial guidelines for referral regarding the exercise of relevant non-compellable powers.

39    It is desirable now to address another issue raised by the respondent in the appeal in seeking to distinguish AJL20 High Court from Plaintiff S4 and related cases. In his written outline of submissions in response, the respondent appeared to contend that AJL20 High Court did not apply to a case where the Minister had commenced to consider whether to exercise a non-compellable power such as that contained in s 195A. The respondent sought to draw a distinction between what he described as the “default operation” of the Migration Act as opposed to a separate operation where “the Minister chooses to administer the Act in respect of particular detainees using administrative processes established personally by the Minister in pursuance of his non-compellable personal power”. The respondent’s counsel appeared to contend that the evidence below disclosed that such consideration had commenced in October and December 2017 and was ongoing. In October and December 2017, the Department proposed that the Minister grant MZZHL a s 195A bridging visa as long as MZZHL attended a migration office for the purpose of him being “administratively detained” so as to trigger the Minister’s power to grant a visa under that provision.

40    There are several difficulties with this argument. First, the argument was not run below. It is notable that the primary judge’s otherwise comprehensive findings of fact do not include any findings regarding the question as to whether a process of considering the exercise of any personal non-compellable powers (including s 195A) had commenced prior to any of the three relevant periods.

41    Secondly, the respondent did not seek leave to file a notice of contention relating to this matter notwithstanding that the Court raised the possibility of such a requirement at the hearing.

42    Thirdly, and in any event, the evidence reveals that MZZHL failed to attend any immigration office so that he could be taken into administrative detention and be granted a s 195A visa. Moreover, his name was subsequently removed from a s 195A “group submission” by the Department in favour of granting some people a final departure bridging visa in order to resolve their unlawful status. Accordingly, any process of consideration had come to an end.

43    Fourthly, it is difficult to understand how a process of commencing consideration of the exercise of a non-compellable power in late 2017 could advance the respondent’s case, particularly when regard is had to the primary judge’s findings that the respondent was lawfully detained during the first two relevant periods, both of which occurred after 2017.

44    Fifthly, the respondent’s argument suggested that the process of consideration which was commenced in October and December 2017 was ongoing during the third relevant period (i.e. March 2019 to May 2021). Any such contention sits most uncomfortably with the evidence described immediately above which indicates that no further consideration was given to granting MZZHL a s 195A bridging visa when he failed to present himself for administrative detention and his name was removed from the list of persons in the s 195A “group list”. Nor did the respondent explain how his argument could be reconciled with the fact that on 19 January 2021 the then Minister determined not to consider exercising his s 195A powers in relation to MZZHL.

45    Finally, with all appropriate respect to the respondent’s counsel, this part of the argument was not presented with optimal clarity. After several exchanges with the Court with a view to having the argument expressed more clearly, the respondent’s counsel said that he wished to reformulate the argument so as to express it “as a procedural point about the Commonwealth appeal”. The respondent contended that for the Commonwealth to succeed on appeal, they “must show that the primary judge erred in finding that the respondent’s detention was contrary to Plaintiff S4”. He said that the issue of the timing of the Minister’s decision to give consideration under s 195A as a “factual point of distinction” from Plaintiff S4 had not been put by the Commonwealth below and that, if it had, it could have been met by evidence. Counsel identified that evidence as being the Department’s submission dated 21 August 2020 to the Minister prior to the Minister’s decision dated 19 January 2021 to not consider intervening under s 195A. The submission referred to the events which occurred in October and December 2017 (as explained above). The respondent’s counsel also referred to several screenshots relating to the respondent’s migration history which were in evidence below and which also made reference to the events which occurred in October and December 2017.

46    For the reasons given above at [34]-[36], we accept the Commonwealth’s submission that Plaintiff S4 does not assist the respondent’s case and in light of the subsequent reasoning of the majority in AJL20 High Court, the primary judge erred in holding to the contrary. As such, this submission does not affect our primary conclusion that grounds 1 and 2 of the appeal must be upheld in the light of the majority’s reasoning in AJL20 High Court.

Conclusion

47    For these reasons, grounds 1 and 2 are upheld, with the consequence that the appeal will be allowed. It is unnecessary to determine grounds 3 and 4.

48    The orders dated 7 July 2021 should be set aside and in lieu thereof it should be ordered that the originating application be dismissed. The respondent should pay the Commonwealth’s costs below, save for the costs of the hearing on 4-7 May 2021, taking into account the Commonwealth’s belated concession below and the significance of the fact that the respondent was granted a bridging visa on 4 May 2021. The respondent should repay the Commonwealth the amount of $350,000, being the amount of the damages he received. The Commonwealth properly did not press its claim for interest in respect of that amount.

49    The respondent should pay the Commonwealth’s costs of the appeal, as agreed or taxed.

50    Orders will be made accordingly.

Associate:

Dated:    2 November 2021