Federal Court of Australia

MZZHL v Commonwealth of Australia [2021] FCA 600

ORDERS

THE COURT ORDERS THAT:

1.    The Respondent is to pay the Applicant within 28 days damages assessed in the sum of $350,000.

2.    The Respondent is to pay the costs of the Applicant, either as agreed or assessed.

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

REASONS FOR JUDGMENT

FLICK J:

1    The Applicant in the present proceeding, identified by the pseudonym MZZHL, was born in Iraq in 1995.

2    He arrived in Australia in May 2012 as an unauthorised maritime arrival. He was taken into detention pursuant to s 189 of the Migration Act 1958 (Cth) (the “Migration Act”).

3    In September 2012 an application that had been made for a protection visa was rejected. That adverse decision was affirmed by a decision of the Refugee Review Tribunal in January 2013: [2013] RRTA 52. In May 2013 he was granted a Bridging Visa and released from detention. In May 2014 the Federal Circuit Court of Australia dismissed a challenge made to the decision of the Tribunal: MZZHL v Minister for Immigration [2014] FCCA 1036.

4    Although there was initially some argument to the contrary, it was common ground at the hearing that the Bridging Visa granted in May 2013 expired in June 2014. In August 2018 the Applicant was again detained.

5    In October 2018 the Applicant made a request in writing pursuant to s 198(1) that he be returned to Iraq. But that request was withdrawn in March 2019.

6    From August 2018 through to the outset of this hearing in May 2021, the Applicant was kept in detention.

7    The proceeding now before the Court was commenced in October 2020 when the Applicant filed an Originating Application and a Statement of Claim. The relief then sought included a claim for damages and an order in the nature of a writ of habeas corpus. The Respondent to the proceeding, the Commonwealth of Australia, filed a Defence in November 2020. The Commonwealth maintains that ss 189(1) and 196(1) of the Migration Act required the continued detention of the Applicant between August 2018 and May 2021. The Commonwealth thus denies the claims made and seeks an order that the proceeding be dismissed with costs.

8    In very summary form, the period of detention between August 2018 and May 2021 can conveniently be divided into three periods of time, namely from:

    August 2018 to October 2018;

    October 2018 to March 2019; and

    March 2019 to May 2021.

The claim for an order in the nature of habeas corpus became unnecessary to resolve when the Applicant was granted a “departure Bridging …visa and a Humanitarian Stay … visa” on the very first day the case was listed for hearing on 4 May 2021 (the “May 2021 visas”). The Decision Instrument recording the exercise of the Ministerial discretion under s 195A of the Migration Act, signed by the current Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (the “Minister for Immigration”), provided as follows:

1.    The above named person is in immigration detention under section 189 of the Migration Act 1958 (the Act) and I have considered his case under section 195A of the Act.

2.    I have determined that it is in the public interest to grant the above named person a final departure Bridging E (subclass 050) visa and a Humanitarian Stay (subclass 449) visa.

3.    I therefore exercise my power under section 195A of the Act to grant a Bridging E (subclass 050) visa and a Humanitarian Stay (subclass 449) visa, in favour of the above named person.

A proposed application for interlocutory relief seeking the release from detention of the Applicant pending the final resolution of the matter was, accordingly, abandoned.

9    At the outset of the hearing, Senior Counsel for the Respondent confirmed the grant of the May 2021 visas. Two further concessions should be also noted at the outset, namely that:

    the Defence filed by the Commonwealth in November 2020 accepted that the Applicant’s detention since August 2018 “has been for the purpose of removing him from Australia”; and

    the Commonwealth in its written reply submissions filed on 4 May 2021 states that “after 13 March 2019, the Commonwealth concedes non-compliance with s 198 on the basis that steps should have been taken to inquire of Iraq whether or not it would be prepared to receive involuntary removals.”

No concession was made in respect to the period prior to 13 March 2019. Notwithstanding the grant of the 2021 visas and those concessions, there was nevertheless left for resolution: questions as to the lawfulness of the prior detention; questions as to whether the Respondent was required to release the Applicant from detention prior to May 2021; and questions as to any entitlement to damages and the quantification of any such damages.

10    In very summary form, it was the position of the Commonwealth that:

    the Applicant has been lawfully kept in detention at all material times because he remained an unlawful non-citizen prior to the grant of the May 2021 visas; and

    any damages which may be payable by the Commonwealth would only be nominal.

Any claim for damages would only attract nominal damages, so the Commonwealth contended, because:

    no order could be made by this Court, prior to the grant of a visa to the Applicant, that the Applicant be released from detention, with the consequence that damages should not be approached upon the basis that the Applicant could otherwise have been granted his freedom – the decision of Bromberg J in AJL20 v Commonwealth of Australia [2020] FCA 1305 (“AJL20”) to the contrary, it was contended, was “plainly wrong”.

11    Notices of a Constitutional Matter under s 78B of the Judiciary Act 1903 (Cth), being a Notice dated 26 April 2021, have been served. No Attorney sought to intervene.

12    It has been concluded that:

    the Applicant was lawfully detained between August and October 2018 and between October 2018 and March 2019;

    shortly after March 2019 the Applicant’s detention became unlawful;

    upon his detention becoming unlawful, the Applicant should have been released from detention soon after March 2019 or within a reasonable time thereafter, but in any event by no later than mid-2019, because:

(a)    no provision of the Migration Act authorised his continued detention, the term “detain” as used in ss 189 and 196 being interpreted to mean “lawfully detain”; and/or

(b)    the decision in AJL20 is not “plainly wrong”;

    compensatory damages should be awarded to the Applicant in the sum of $350,000, that sum being calculated upon the basis that either:

(a)    the Applicant should have been released from detention by no later than mid-2019; and/or

(b)    had the Minister then entrusted with the administration of the Migration Act given consideration to the plight of the Applicant soon after March 2019 or within a reasonable period of time thereafter – he would most likely have done then what the current Minister for Immigration finally did at the outset of the present hearing, namely he would have made a decision to grant the Applicant a visa and thereby secured his release from detention;

    no special, exemplary or aggravated damages should be awarded; and

    an order should be made in the Applicant’s favour for the costs of the present proceeding.

Each of these conclusions should be separately addressed.

13    An appeal from the decision in AJL20 was heard by the High Court of Australia on 13 April 2021. Judgment was then reserved.

THE MIGRATION ACT

14    The provisions of the Migration Act of immediate relevance to the present proceeding should be set forth and briefly addressed. They are as follows.

15    Initially, it should be noted that the overall “object” of the Act is set forth in s 4 as follows:

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.

Of particular importance to any conclusion that an unlawful non-citizen can be released from detention without also having a visa are the terms of s 4(2). 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.

16    The power sought to be exercised to “detain” the Applicant in August 2018 and thereafter was that conferred by s 189(1), which provides as follows:

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.

17    The mandatory nature of the terms of this section – “the officer must detain” – cannot be underestimated. In Plaintiff M47/2012 v Director-General of Security [2012] HCA 46, (2012) 251 CLR 1 at 78 (“Plaintiff M47/2012”), Hayne J thus observed:

[177]    The Act spells out the consequences that follow from being a lawful non-citizen or an unlawful non-citizen. Generally, an officer is bound … to detain a person whom the officer knows or reasonably suspects to be an unlawful non-citizen. Subject to the possibility of the Minister making a “residence determination” under s 197AB, s 196(1) requires that an unlawful non-citizen detained under s 189 of the Act “be kept in immigration detention until he or she is” removed from Australia, deported or granted a visa. An officer is bound (s 198(2)) to remove “as soon as reasonably practicable” an unlawful non-citizen who has been detained, has not subsequently been immigration cleared, and has no valid application for a visa that has not yet been finally determined.

[178]     The Act provides no middle ground between being a lawful non-citizen (entitled to remain in Australia in accordance with any applicable visa requirements) and being an unlawful non-citizen, who may, usually must, be detained and who (assuming there is no pending consideration of a valid visa application) must be removed from Australia as soon as reasonably practicable. These consequences – remaining in Australia on the one hand and detention followed by removal from Australia on the other – follow once the central question has been answered: is the person a lawful non-citizen or an unlawful non-citizen? That question depends upon whether the Minister grants or refuses to grant a visa or, if a visa has previously been granted, whether that visa has since been cancelled.

(footnote omitted)

18    Section 195A, which confers a personal and non-compellable power on the Minister to grant a visa to a person in detention, provides as follows (in relevant part):

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.

…

19    Section 196, to which reference was made by Hayne J in Plaintiff M47/2012 provides (in relevant part) as follows:

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.

In respect to this provision, French CJ, Hayne, Crennan, Kiefel and Keane JJ in Plaintiff S4/2014 v Minister for Immigration and Border Protection [2014] HCA 34, (2014) 253 CLR 219 at 232-233 (“Plaintiff S4”) observed:

[30]    Section 196(1) prescribes the duration of immigration detention. It provides that an unlawful non-citizen must be kept in immigration detention until the happening of one of four events: removal from Australia under s 198 or s 199; an officer beginning the process under s 198AD(3) for removal to a regional processing country; deportation under s 200; or the grant of a visa. Of those four events, it is the first — removal from Australia under s 198(2) — which fixed the outer limit to the plaintiff’s detention. It is necessary to explain that conclusion.

See also: AJL20 at [11]. In Arthur as litigation representative for CYG20 v Commonwealth of Australia [2021] FCA 259 (“CYG20”), Griffiths J referred to the decision of Bromberg J and similarly concluded:

[21]    Justice Bromberg held that the proper construction of ss 189, 196 and 198 of the Act was such that upon engagement of the duty imposed by s 198(6) for an officer to remove an unlawful non-citizen as soon as reasonably practicable, the relevant person’s continued detention could only be lawful if it was for one of the following purposes:

(a)    removing the person from Australia;

(b)    receiving, investigating and determining an application for a visa by the person to enter and remain in Australia;

(c)    determining whether to permit the person to make a valid application for a visa; or

(d)    determining whether to grant the person a visa without an application by him or her.

20    As to the “scheme of the Act” which can be distilled from ss 189, 196 and 198, Kiefel and Keane JJ in Plaintiff M76/2013 v Minister for Immigration, Multicultural Affairs and Citizenship [2013] HCA 53, (2013) 251 CLR 322 at 379-381 (“Plaintiff M76/2013”) observed:

[182] …    The scheme of the Act contemplates that only those aliens who hold a visa are entitled to be at large in the Australian community. In this context, the absence of an express limitation upon continued detention where removal is not practicable within a reasonable time is not “silence” on the part of the legislature. The circumstance that the language of ss 189, 196 and 198 is not qualified by any indication that the mandate requiring detention depends upon the reasonable practicability of removal within any time frame is eloquent of an intention that an unlawful non-citizen should not be at large in the Australian community: the mandate in s 189 is unqualified in its terms, and the operation of the mandate in s 196(1) is, in terms (subject only to the possibility of the Minister making a “residence determination” under s 197AB of the Act), until the unlawful non-citizen is removed from Australia under s 198 or the unlawful non-citizen is granted a visa.

[183]    It has been said… that the authority to detain conferred by s 196(1) is constrained under s 198(2) by the purpose of removal within a reasonable time, and that where this purpose is presently incapable of fulfilment, the authority to detain expires. But to say that is to fail to recognise that ss 196 and 198 are parts of a legislative scheme which includes s 189. Even if it were to be accepted that s 196(1) ceased to authorise the continuing detention of an unlawful non-citizen, and the detainee were released, s 189 would then be engaged to require immediate detention in order to serve the evident purpose of preventing unauthorised entry into the Australian community.

[184]    As to the second of these points, an alien’s right to be at liberty in Australia is to be approached as a matter of statutory entitlement under the Act rather than as a “fundamental right”. The view of the minority in Al-Kateb, viz, that the Act leaves room for the possibility that an alien who is an unlawful non-citizen may lawfully be at liberty within the Australian community without a visa issued pursuant to the provisions of the Act, derives no support from the language of the Act. Nor does it derive support from any principle of the common law that an alien who is unlawfully in Australia is entitled to be at liberty in the Australian community as if he or she were an Australian citizen or a non-citizen lawfully present in Australia.

…

[186]    While it may not be practicable to deport the plaintiff now or within the reasonably foreseeable future, the provisions of the Act serve to exclude the plaintiff from the Australian community, she having no right under the Act to enter, and be at large in, that community.

[187]    As a matter of ordinary language, these provisions do not have the meaning and effect that an unlawful non-citizen who has not obtained a visa, but whose removal from Australia is not reasonably practicable because no other country is willing to accept him or her for resettlement, is to be allowed to go at large in the Australian community. Notwithstanding the high value accorded to individual liberty in the tradition of the common law, and even though a less stringent regime might have been adopted, it is hardly surprising that the Act operates to prevent entry into the Australian community save pursuant to authority granted by the Act.

(footnotes omitted)

These observations were made in a context where a decision not to refer the plaintiff’s case to the Minister for consideration pursuant to s 46A(2) of the Migration Act had been affected by an error of law, and the power conferred by s 46A(2) remained unperformed.

21    Section 198 provides (in relevant part) as follows:

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.

…

22    Of these provisions, but with particular reference to s 198 and the need to remove an unlawful non-citizen “as soon as reasonably practicable”, Hayne J in Al-Kateb v Godwin [2004] HCA 37, (2004) 219 CLR 562 (“Al-Kateb”) at 638-639 concluded:

[224]    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. …

…

[226]    The period of detention is fixed by reference to the occurrence of any of three specified events. Detention must continue “until” one of those events occurs. The event described as being “removed from Australia under section 198” is an event the occurrence of which is affected by the imposition of a duty, by s 198, to bring about that event “as soon as reasonably practicable”. That compound temporal expression recognises that the time by which the event is to occur is affected by considerations of what is “[c]apable of being put into practice, carried out in action, effected, accomplished, or done”… In particular, the expression recognises that the co-operation of persons, other than the non-citizen and the officer, will often (indeed usually) be necessary before the removal can occur. The duty to remove must be performed within that time. And so long as the time for performance of that duty has not expired, s 196 in terms provides that the non-citizen must be detained.

[227]    It may be accepted that “as soon as reasonably practicable” assumes that the event concerned can happen, and that, if there is any uncertainty, it is about when the event will happen, not whether it will. Where, as here, the person to be removed is stateless, there is no state to which Australia can look as the first and most likely receiving country. But whether the non-citizen is stateless or has a nationality, Robtelmes v Brenan reveals that the removal provisions of the Act are concerned with what was there identified [Robtelmes (1906) 4 CLR 395] as the corollary to, or complement of, the power of exclusion. Removal is the purpose of the provisions, not repatriation or removal to a place. It follows, therefore, that stateless or not, absent some other restriction on the power to remove, a non-citizen may be removed to any place willing to receive that person. It follows that, unless some other provision of the Act restricts the places to which a non-citizen may be removed (and none was said to be relevant here), the duty imposed by s 198 requires an officer to seek to remove the non-citizen to any place that will receive the non-citizen. And the time for performance of the duty does not pass until it is reasonably practicable to remove the non-citizen in question.

[228]    In the case of a stateless person, there may be many countries which could properly be approached and asked to receive the person. Whether one of those countries agrees to take the person will ordinarily depend upon matters beyond the power of Australia. Indeed, whether the country of nationality of a non-citizen who is not stateless will receive that person, if expelled from Australia, will ordinarily depend upon matters beyond this country’s power to control, perhaps even influence.

[229]    What follows is that the most that could ever be said in a particular case where it is not now, and has not been, reasonably practicable to effect removal, is that there is now no country which will receive a particular non-citizen whom Australia seeks to remove, and it cannot now be predicted when that will happen. Nor is it to say that the time for performing the duty imposed by s 198 has come. The duty remains unperformed: it has not yet been practicable to effect removal. That is not to say that it will never happen.

[230]    This appellant’s case stands as an example of why it cannot be said that removal will never happen. …

Heydon J relevantly agreed with Hayne J: [2004] HCA 37 at [303], (2004) 219 CLR at 662-663. In AJL20, Bromberg J referred with approval to these observations of Hayne J and observed:

[115]    The evidence confirms the concession made by the Commonwealth that active steps to progress the removal of the applicant from Australia were not taken between 26 July 2019 and 27 November 2019. The evidence does not establish that, in the first period, the applicant’s removal from Australia was undertaken or carried into effect as soon as reasonably practicable.

[116]    The absence of any or sufficient steps being taken to progress removal over a period of detention will not necessarily demonstrate that removal of the detainee from Australia was not undertaken or carried into effect as soon as reasonably practicable. As Hayne J noted in Al-Kateb at [226]–[228] the removal of a non-citizen from Australia will ordinarily require the cooperation of other countries to effectuate that removal. There may be delays or obstacles to the timely removal of a detainee caused by circumstances beyond the control of Australia which bring about inaction or cause the absence of active steps to progress removal. There may be other justifications for inaction or delayed action which will serve to deny the conclusion that the removal of the non-citizen was not undertaken or carried into effect as soon as reasonably practicable.

These observations of Bromberg J were also endorsed by Griffiths J in CYG20 [2021] FCA 259 at [24].

23    In Al-Kateb, Hayne J formed part of the majority. Gleeson CJ, Gummow and Kirby JJ dissented. And as pointed out by Senior Counsel for the Commonwealth in the present case, Al-Kateb has not since been overruled: Plaintiff M76/2013 [2013] HCA 53, (2013) 251 CLR 322 at 365-366. Hayne J there adhered to the view he had previously expressed as to the correct construction of ss 189, 196 and 198 as follows:

Construing the Act

[124]    In Al-Kateb, this court decided, by majority, that ss 189, 196 and 198 authorised and required the detention of an unlawful non-citizen, even if his or her removal from Australia was not reasonably practicable in the foreseeable future. In Plaintiff M47/2012, two members of the court concluded that the dissenting opinion about the construction of those provisions expressed by Gleeson CJ in Al-Kateb was to be preferred. But Al-Kateb has not been overruled.

[125]    Fundamental principle requires that this Court not now depart from the construction of the relevant provisions which was adopted by the majority in Al-Kateb. All that has changed since Al-Kateb was decided is the composition of the Bench. That is not reason enough to revisit the decision. And when the Parliament has had repeated opportunities to amend the effect of the decision in that case, but has not done so, this Court should not depart from what was then held to be the proper construction of the relevant provisions.

[126]    The Act fixes the end of immigration detention by reference to the occurrence of one of the four terminating events prescribed by s 196(1) and referred to at the start of these reasons: removal from Australia, deportation, grant of a visa, or an officer beginning to deal with the non-citizen for the purpose of taking that person to a regional processing country. The requirement of s 196(1) that an unlawful non-citizen detained under s 189 must be kept in immigration detention “until” the happening of one of those events cannot be construed as using the word “until” in some purposive sense. One of the terminating events is the grant of a visa and it is not to be supposed that detention could be for the purpose of granting the person detained a visa. It thus follows that the word “until” must be read in s 196(1) as fixing the end of detention, not as fixing the purpose or purposes for which detention is or may be effected.

(footnotes omitted)

Of particular relevance to the Commonwealth’s case are the observations of Hayne J that the “requirement of s 196(1) that an unlawful non-citizen detained under s 189 must be kept in immigration detention ‘until’ the happening of one of those events cannot be construed as using the word ‘until’ in some purposive sense.”

24    A failure on the part of a person who has been detained to co-operate with those seeking his removal from Australia may go to a finding as to the reasonableness of the time taken by those seeking to secure his removal: cf. Plaintiff M47/2018 v Minister for Home Affairs [2019] HCA 17, (2019) 265 CLR 285 (“Plaintiff M47/2018”). The Applicant had there failed to cooperate with the Department in determining his identity and nationality. In such circumstances the Court was unwilling to draw an inference that there was no real prospect or likelihood that he would be able to be removed from Australia in the reasonably foreseeable future. Kiefel CJ, Keane, Nettle and Edelman JJ reasoned in part as follows (at 297):

[31]    Because the plaintiff has contributed to the frustration of lines of enquiry as to his identity and nationality, what might be established about his identity and nationality if he were to assist the Department in its enquiries cannot be known. It certainly cannot be inferred that genuine assistance from the plaintiff would not be helpful. …

[32]    Such information has not been forthcoming from the plaintiff, and the Court has been given no good reason to regard the plaintiff as incapable of giving a factual and verifiable account of those matters should he choose to do so. Indeed, the plaintiff seeks to take advantage of difficulties to which he has contributed to contend that enquiries as to his identity and country of origin have no prospect of success.

25    Finally, it should also be noted at the outset that where an applicant has discharged an evidentiary onus of establishing that where there is reason to suppose that his detention has ceased to be lawful, the onus is thereafter on the Commonwealth to “justify” his detention: Plaintiff M47/2018 [2019] HCA 17, (2019) 265 CLR 285 at 299-300. Kiefel CJ, Keane, Nettle and Edelman JJ there relevantly concluded as follows:

[39]    …The plaintiff assumed, by his pleading, the burden of establishing those inferences as matters of fact … . It is not only “an elementary rule of the law of evidence”, but “a rule of common sense” …that the burden of proof is upon the party who asserts a fact, not on the party who denies it. That is not to overlook that where, as here, the claim is one for habeas corpus, the onus is on the defendant Minister to justify the plaintiff‘s detention… . But where, as here, the plaintiff’s detention is apparently lawful – because it is admitted that the plaintiff is an unlawful non-citizen, and ss 189 and 196 of the Act are lawful authority to detain an unlawful non-citizen for the purpose of lawful removal from Australia as soon as that becomes practicable – the plaintiff carries at least an initial evidentiary burden of establishing that there is reason to suppose that his detention has ceased to be lawful by reason that it is no longer reasonably foreseeable that he will be removed from Australia… .

(footnotes omitted)

Similarly, in AOU21 v Minister for Home Affairs [2021] FCAFC 60, Griffiths, Mortimer and Perry JJ concluded:

[185]    The numerous previous cases dealing with the onus of proof in a proceeding where there is an allegation of unlawful detention (either in tort or by application for writ in the nature of habeas corpus), establish the detaining authority bears the onus of proving the detention is lawful. …

To like effect are the following observations of Spigelman CJ in Ruddock v Taylor [2003] NSWCA 262, (2003) 58 NSWLR 269 at 272:

[3]    The protection of the personal liberty of individuals has been a fundamental purpose of the common law for centuries. The tort of trespass in the form of false imprisonment, has been one of the ways in which that protection has been provided throughout that period. Once a plaintiff proves actual imprisonment, the onus is on the defendant to establish lawful authority. The executive arm of government is not in a special position in this regard. It must establish that its officers had lawful authority.

[4]    False imprisonment is an intentional tort. Liability turns on an intention to detain. Good faith is not a defence. The only defence is lawful authority. …

This decision was later reversed by the High Court, but not in a manner which affected the observations made as to onus: Ruddock v Taylor [2005] HCA 48 per McHugh J at [97] and Kirby J at [141], (2005) 222 CLR 612 at 638 and 651.

26    The Commonwealth in the present proceeding properly accepted that it bore the onus of proving the lawfulness of the detention of the Applicant at all material times.

THE DETENTION OF THE APPLICANT – FROM AUGUST 2018 TO MARCH 2019

27    The concession made by the Commonwealth applies to that period of time when the Applicant was detained subsequent to March 2019.

28    Prior to that point of time, the Applicant had relevantly:

    been detained by officers of the Respondent in August 2018;

    made a request for removal to Iraq pursuant to s 198(1) of the Migration Act in October 2018; and

    withdrawn that request for removal in March 2019.

For the purposes of resolving questions as to the lawfulness of the detention of the Applicant from August to October 2018 and from October 2018 to March 2019, the Commonwealth accepts in its Defence that his detention subsequent to 10 August 2018 “has been for the purpose of removing him from Australia.”

29    Accepting that the Commonwealth bore the onus of establishing the lawfulness of the detention during this period of time (Plaintiff M47/2018 [2019] HCA 17 at [39], (2019) 265 CLR at 299-300), the lawfulness of the detention during these two periods of time requires consideration of:

    the terms of ss 189, 196 and 198 of the Migration Act; and

    a factual analysis of the steps being taken by officers of the Respondent to comply with these provisions.

It has been concluded that for each of these two periods of time the Applicant was lawfully detained. No question of damages thus arises in respect to either period. But each period of detention should be separately addressed.

August to October 2018 – reasonable suspicion & purpose

30    No argument is now advanced that the visa granted in May 2013 visa did not expire in June 2014. The Applicant, by his Counsel in closing submissions, does not now “seek relief on the basis that any of the detaining officers did not reasonably suspect that he was an unlawful non-citizen under s 189(1)”. Nor does the Applicant seek relief “in relation to the performance of s 198 during the initial period of detention between 18 August 2018 and 26 October 2018.”

31    It necessarily follows that at the time of his detention in August 2018 the Applicant was an “unlawful non-citizen” and hence a person who “must” be detained provided those exercising the power “reasonably suspect[ed]” he was an unlawful non-citizen: s 189. See also: Plaintiff M47/2012 [2012] HCA 46 at [177] to [178], (2012) 251 CLR 1 at 78 per Hayne J.

32    Although no longer put in issue by the Applicant, it may nevertheless be noted that it would have been concluded that those exercising the power conferred by s 189 in August 2018:

    were “officers” within the meaning of and for the purposes of s 189; and

    those officers “reasonably suspect[ed]” that the Applicant was an unlawful non-citizen.

It has also been further concluded that:

    the detention of the Applicant during the period from August 2018 through to October 2018 was for the purpose of securing his removal from Australia, that being the only purpose being pursued by the Commonwealth as accepted in its Defence.

33    As to the first of these conclusions, those involved in the detention of the Applicant in August 2018 were officers of the Australian Border Force in the Department of Home Affairs.

34    As to the second conclusion, there was a basis upon which a view could be formed that the Applicant was an unlawful non-citizen and that those exercising the power “reasonably suspect[ed]” he was an unlawful non-citizen.

35    One of those “officers” involved in the detention of the Applicant, Mr Flack, stated in his affidavit that once the Applicant’s identity was confirmed he “completed an immigration status check” and “was satisfied that … [the Applicant was] an unlawful non-citizen”. Another member of the Australian Border Force who was involved in the detention, Mr Lea, gave like evidence.

36    Section 189 thus authorised the detention of the Applicant “until” he could be removed from Australia: s 196(1)(a).

37    Prior to October 2018 steps were actively being taken to secure the Applicant’s removal from Australia.

38    That conclusion is founded upon the following chronology of events, namely:

    the forwarding of an email on 13 August 2018 by the Applicant’s Detention Status Resolution Officer (Mr Mick Kaddour) to NSW Removals asking them to “[p]lease progress [the Applicant’s] removal”, that email being sent because Mr Kaddour was of the view that there were “no ongoing immigration matters relating to a visa and so his only immigration pathway was removal from Australia”; and

    the receipt by Mr Kaddour of an email from another member of his Department on 6 September 2018 advising that the Applicant had applied for a bridging visa on 3 September 2018, but that the Applicant had been advised that the application was “invalid because it did not meet [the requirements of] section 46A”.

It is thus concluded that the detention of the Applicant from August through to October 2018 was lawful.

October 2018 to March 2019

39    The nature of the continued detention of the Applicant after October 2018 was changed by reason of his making of a request “in writing” on 26 October 2018 pursuant to s 198(1) of the Migration Act. Upon the making of that request, the Minister was required “as soon as was reasonably practicable” thereafter to remove the Applicant as requested: s 198(1). See also: Al-Kateb v Godwin [2004] HCA 37 at [224] to [230], (2004) 219 CLR 562 at 638-640 per Hayne J. Sections 189 and 196 continued to provide authority for the detention of the Applicant whilst steps were being pursued to give effect to the request: s 196(1)(a).

40    But that request was withdrawn on 13 March 2019. The reasons provided by the Applicant for the withdrawal of his earlier request to be removed to Iraq were expressed as follows:

life is in danger if returned to IRAQ, parents home has been burned to the ground by a group linked to the government, they initially came to look for me but couldn’t find me so they burned my family home, this happened on …. My Mother and Sister are currently in hiding … . Government are currently kidnapping and harming people who support …, I am a supporter of them so was my father who got kidnapped in … and hasn’t been seen since, for these reasons they are looking for me and are harming my family.

Although this account was handwritten which may have suggested that it was written by the Applicant, it was in fact written by Mr Kaddour based upon what was said during the course of a meeting on 13 March 2019.

41    Between the making of the request for removal to Iraq in October and the withdrawal of that request in March 2019 it is concluded that officers of the Department were seeking to secure the removal of the Applicant to Iraq “as soon as reasonably practicable” within the meaning of and for the purposes of s 198(1) of the Migration Act. The Applicant, by his Counsel in closing submissions, did not seek relief in relation to non-compliance s 198(1), that section concerning “voluntary” removals. So the submission ran, “[n]o one seriously regarded the applicant as a voluntary removee, including himself under cross-examination.” The Applicant accordingly pressed his entitlement to relief for the Commonwealth’s failure to comply with ss 198(2) and (6), those sections being directed to “involuntary” removals. The Applicant submits that the Commonwealth should have taken “steps to inquire of Iraq whether or not it would be prepared to receive involuntary removals.”

42    Until a request which has been made in writing pursuant to s 198(1) has been withdrawn, however, the task confronting the officers of the Respondent was to give effect to that request as soon as reasonably practicable. What may be sufficient to constitute the withdrawal of a request for removal would necessarily involve a question of fact. On the facts of the present case, it cannot be found that prior to March 2019 the Applicant had withdrawn his request. Notwithstanding his own belief, and perhaps that of officers of the Respondent, that voluntary removal was not a possibility which could be pursued with any hope of a successful outcome, those officers were bound to give effect to the October 2018 request for removal until it had been withdrawn. And it had not been unequivocally withdrawn until March 2019. It would place officers of the Respondent in an invidious position if they were to be confronted with potentially competing responsibilities – i.e., removal pursuant to a request in writing made pursuant to s 198(1) or not giving effect to that request because they (rightly or wrongly) believed that voluntary removal was no longer what the unlawful non-citizen wanted to achieve. Notwithstanding some reservation arising because the onus forever remained upon the Commonwealth to justify the lawfulness of the continuing detention of the Applicant, on the facts of the present case that onus has been discharged: Plaintiff M47/2018 [2019] HCA 17 at [39], (2019) 265 CLR 285 at 299-300 per Kiefel CJ, Keane, Nettle and Edelman JJ; AOU21 v Minister for Home Affairs [2021] FCAFC 60 at [185] per Griffiths, Mortimer and Perry JJ. Unless and until the October 2018 request was withdrawn, it is concluded that there was an outstanding “request” for the purposes of s 198(1), and the Commonwealth was taking steps to secure the Applicant’s removal pursuant to that “request”.

43    That finding is based essentially upon the following chronology of events, namely:

    on 26 October 2018 there was an interview with the Applicant conducted by his “Removals Officer” (Ms Cemile Kiyak) – the purpose of the interview being to “obtain further information … to determine if he required any support (including financial assistance or accommodation) on his return to Iraq”. The Removals Officer formed the view during that interview that the removal of the Applicant was an “involuntary removal, as he was not willing to co-operate to progress his removal (i.e. by refusing to complete an Iraqi travel document application)”;

    on 1 November 2018 Ms Kiyak sent an email to Travel Document Requests and Consular Enquiries (“TRACE”) canvassing (inter alia) the steps to be taken to secure the Applicant’s removal given his unwillingness to be interviewed by the Iraqi Consulate. An email of 13 November 2018 from Ms Elizabeth Zadro of TRACE summarised a telephone call from the Iraqi Consulate on that date advising that the Consulate was “unable to progress the application… as there is insufficient identity documentation…”; and

    the receipt of advice in January 2019 from TRACE that “involuntary removals could not be returned to Iraq”.

Given the steps being taken to give effect to the October 2018 request for removal of the Applicant back to Iraq, be that removal either on a voluntary or involuntary basis, any argument that the Respondent was not taking reasonable steps to achieve his removal cannot prevail.

44    This conclusion is reached notwithstanding the fact that the Applicant may have had good reason not to not wish to be interviewed by persons at the Iraqi Consulate for the purpose of facilitating his removal to Iraq. Although a failure to co-operate on the part of an applicant may assume some relevance for the purpose of determining what constitutes a reasonable time and the reasonableness of steps taken to give effect to a request for removal (cf. Plaintiff M47/2018 [2019] HCA 17 at [31]-[32], (2019) 265 CLR at 297 per Kiefel CJ, Keane, Nettle and Edelman JJ), the unwillingness of the Applicant to be interviewed by Iraqi officials at the Consulate does not affect the finding that, between October 2018 and March 2019, officers of the Respondent were taking reasonable steps to secure the Applicant’s removal from Australia. The failure to co-operate does not, with respect, “bring forward” the consequences that flow from the withdrawal of the request in March 2019. Until the request was withdrawn, officers of the Respondent were taking reasonable steps to give effect to the October 2018 request.

45    During this period of time, it is thus concluded, that there was no departure from the requirements imposed by s 198(1). The detention of the Applicant during this period was thus lawful.

THE DETENTION OF THE APPLICANT AFTER MARCH 2019?

46    The period of detention which was the principal focus of the Applicant’s case was the period subsequent to March 2019. As with the two earlier periods of detention, the Defence of the Commonwealth:

    confines the “ purpose” being pursued by the Commonwealth to that of removing the Applicant from Australia, no other “purpose” being relied upon.

Unlike the two earlier periods of detention, however, for the period after 13 March 2019, the Commonwealth:

    “concedes non-compliance with s 198 on the basis that steps should have been taken to inquire of Iraq whether or not it would be prepared to receive involuntary removals”.

47    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.

The facts – the steps being pursued between March 2019 and May 2021

48    Prior to the making of a decision in January 2021 by the Minister for Immigration not to consider intervening pursuant to s 195A of the Migration Act, the evidence as to the steps taken by the Respondent to address the continued detention of the Applicant subsequent to March 2019 is scant.

49    Some evidence specifically directed to the fate of the Applicant prior to January 2021 is that provided by Ms Kiyak. In her affidavit she maintains that on 8 October 2020 she emailed a Mr Chad Brimfield temporarily re-allocating to him the Applicant’s case. That e-mail requested that Mr Brimfield contact the Applicant “for a removal discussion” and that his case “Remains invol – no involuntary removals to IRAQ”. Ms Kiyak was re-allocated the Applicant’s case upon her return from secondment on 30 December 2020. The next event was the sending of an email from Ms Kiyak to Ms Masri, a Border Force Supervisor in Removal Operations, informing Ms Masri (inter alia) that the Applicant had previously withdrawn a request for removal from Australia on 13 March 2019 and that the Applicant had “no ongoing matters before the department”. The email recommended that the Applicant’s case “be managed in the ‘protracted caseload’”. Ms Masri responded on the same day agreeing with the recommendation.

50    Mr Brimfield did not file any affidavit and it is to be assumed that he did nothing in respect to the Applicant during the period from 8 October 2020 through to 30 December 2020.

51    Mr Hector Gonzalez also gave evidence as to his involvement with the Applicant after March 2019. Mr Gonzalez was the Detention Status Resolution Officer assigned to the Applicant between August 2020 and November 2020. His evidence was that he was satisfied that the Applicant was an unlawful non-citizen. Mr Gonzalez maintained that he spoke to the Applicant on 7 September 2020 and spoke “to the applicant’s legal representative on a few occasions during this period”. The subject-matter of the discussion on 7 September 2020 and the discussions with the “legal representatives” were not set forth. Based upon his understanding of the purposes of s 189(1) of the Migration Act, Mr Gonzalez “caused the applicant to continue to be detained at the [Villawood Immigration Detention Centre] in that [he] did not take any steps to effect his release…” Mr Gonzalez completed a case review in respect to the Applicant on 15 September 2020.

52    In January 2020 the Applicant sent an email to Mr Kaddour with pictures and a video of what he described as: Video house exploded. The text of one of the emails in the chain states (without alteration):

Mick for your information tha lady on the video with the glasses she’s my mom and the young one is my sister.

Mr Kaddour makes no reference to this email in his affidavit.

53    There is also a hand-written note of a “Removal Conversation” on the letter-head of the Australian Border Force and dated 10 March 2020. The note records a conversation with the Applicant lasting 20 minutes. Who prepared this note and for what purpose remains unknown. But the note assumes importance for either of two reasons, namely:

    in answer to a type-written question as to the Applicant’s “current intentions in regards to removal or visa lodgement” the Applicant stated he wished to “continue [his] visa appeals”; and

    in answer to a question as to whether you “[w]ould you like to seek Consular assistance” the Applicant stated “No”.

The note also inquired of the Applicant:

    whether he was “eligible for entry and long-term stay of a second country” to which he replied “I wish”.

The note nevertheless provides some evidence that officers, or at least an officer, of the Respondent inquired as to whether the Applicant had changed his mind in not wishing to approach the Iraqi Consulate with a view to progressing his removal application about a year after he had withdrawn the request made pursuant to s 198(1).

54    Such was the evidence as between March 2019 and January 2021.

55    It was on 19 January 2021 that the Minister decided not to intervene pursuant to s 195A. That decision was followed by a Case Review undertaken on 16 March 2021.

56    The January 2021 Ministerial decision is recorded in the Departmental Submission which set forth a number of “Recommendations”. The relevant “Recommendations” which the Minister circled were two, namely to “not consider” intervening pursuant to s 195A of the Migration Act and to “not consider” exercising his power under s 46A(2) of that Act. The 16 March 2021 Case Review made reference to this earlier Ministerial decision.

57    Neither the Departmental Submission nor the Case Review, however, contained any analysis of or any factual analysis as to either:

    the steps being taken by officers of the Respondent to effect the removal of the Applicant from Australia or any explanation as to why no such steps were being undertaken; or

    any consideration as to the potential need to re-consider the Applicant’s claims to refugee status given an Identity Assessment Report dated in June 2016 finding the Applicant to be an Iraqi resident or the claims made in the withdrawal of the request for removal to Iraq in March 2019.

There was no acknowledgement in either the Departmental Submission or the Case Review as to the detention of the Applicant being unlawful or (at the very least) arguably unlawful. The closest that Submission came to that issue was an acknowledgment that if the Minister were to not intervene under s 195A, “his ongoing detention may attract criticism from external scrutiny bodies including UN WGAD group and the UN Human Rights Council”. The absence of any such acknowledgment is concerning given:

    the length of time the Applicant had been kept in detention, a period recorded in the Submission as being “a cumulative period of more than two years and six months…”;

    the fact that the Applicant’s case was being referred to the Minister “as complaints have been lodged with the United Nations Working Group on Arbitrary Detention … and to the UN Human Rights Council regarding his detention”; and

    the fact that nothing had been done by officers of the Respondent to effect the removal of the Applicant from Australia and nothing was being done to consider whether his claims for protection should be revisited.

58    The importance of a Departmental Submission prepared for the consideration of a Minister containing reference to matters of significance cannot be underestimated. In order for a Minister to make an informed decision, and a decision for which the Minister is ultimately accountable to Parliament, the Departmental Submission cannot be underestimated. The failure, by the inadvertence of Departmental officers, to make reference to matters of significance to the decision to be reached can dictate or largely influence the decision to be reached. So much has long been recognised. Albeit in the context of a judicial review application and the identification of matters which a Minister was “bound” to consider, in Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 30 to 31 Gibbs CJ observed:

Of course the Minister cannot be expected to read for himself all the relevant papers that relate to the matter. It would not be unreasonable for him to rely on a summary of the relevant facts furnished by the officers of his Department. No complaint could be made if the departmental officers, in their summary, omitted to mention a fact which was insignificant or insubstantial. But if the Minister relies entirely on a departmental summary which fails to bring to his attention a material fact which he is bound to consider, and which cannot be dismissed as insignificant or insubstantial, the consequence will be that he will have failed to take that material fact into account and will not have formed his satisfaction in accordance with law.

Mason J (as his Honour then was) there also referred as follows to the need for a Minister to be properly informed of matters of relevance to the decision to be reached, and to be able to proceed upon the basis of information that is not incomplete or misleading (at 45):

…It would be a strange result indeed to hold that the Minister is entitled to ignore material of which he has actual or constructive knowledge and which may have a direct bearing on the justice of making the land grant, and to proceed instead on the basis of material that may be incomplete, inaccurate or misleading. In one sense this conclusion may be seen as an application of the general principle that an administrative decision-maker is required to make his decision on the basis of material available to him at the time the decision is made. …

59    The period of detention between March 2019 and May 2021 ends with the decision taken by the Minister for Immigration on 4 May 2021 to intervene pursuant to s 195A, thereby pursuing a completely opposite course to that taken some three to four months previously in January 2021. The Minister for Immigration, it should be noted, between January through to May 2021 remained the same – the Hon. Alex Hawke. The reasons for this reversal of course could be the subject of much speculation. Perhaps those reasons had something to do with the imminent judicial scrutiny of the decision-making course whereby the Applicant was deprived of his liberty for a period in excess of three years. But speculation cannot take the place of evidence. Such reasons as may have influenced the Minister in May 2021, however, were withheld from judicial scrutiny. The substance of the Departmental Submission recording the Minister’s May 2021 decision was withheld. Of a document occupying some 10 to 11 pages, all pages but the first page (recording the Recommendations and the decision) and the last two pages (being the Decision Instrument and the Statement to Parliament) were withheld in their entirety.

60    Based upon such evidence, it is found as a fact that:

    during the period from 13 March 2019 through to January 2021, no steps were undertaken (either by Ms Kiyak or Mr Brimfield or any other officer of the Respondent) to secure or attempt to secure the removal of the Applicant from Australia.

More specifically, and to employ the analysis in Plaintiff S4 [2014] HCA 34 at [30], (2014) 253 CLR 219 at 232-233 and CYG20 [2021] FCA 259 at [21], it is found as a fact that:

    during the period from 13 March 2019 through to January 2021, no steps were undertaken (either by Ms Kiyak or Mr Brimfield or any other officer of the Respondent) to:

(a)    remove the Applicant from Australia;

(b)    receive, investigate or determine any application for a visa by the Applicant to remain in Australia; or

(c)    determine whether to grant the Applicant a visa.

The last two of these findings, of course, are also supported by the statement made by the Commonwealth in its Defence as to the “purpose” being pursued – that “purpose” not including any consideration being given to the grant of a visa.

61    An internal exchange of emails recommending that the Applicant’s case “be managed in the ‘protracted caseload’…” may say something as to how his case was being managed but says nothing as to the taking of any steps to progress his removal from Australia. In particular, it is found as a fact that during the period from 13 March 2019 through to January 2021:

    other than the question posed in the Removal Conversation on 10 March 2020, no steps were being undertaken to determine whether the Applicant was willing to be removed from Australia to some other country, other than Iraq; and

    no steps were being undertaken to secure the removal of the Applicant from Australia to any other country that may be willing to accept the Applicant, other than Iraq itself.

There was no evidence (for example):

    as to whether there was any other country (albeit a country not known to the Applicant) willing to take the Applicant (or like persons in his position);

and no evidence:

    as to any consideration being given to whether there was any available means whereby the Applicant could be released from detention by the grant of some form of visa.

62    The inescapable inference is that those officers of the Respondent responsible for the continued detention of the Applicant formed the view that the only course open to them was to continue to detain the Applicant irrespective of however long that period of detention may be. Any attempt to secure the removal of the Applicant from Australia or to pursue any other purpose which may have rendered the continued detention of the Applicant lawful had been abandoned by the Commonwealth. So much, with respect, is consistent with the approach of the Applicant’s Detention Status Resolution Officer (Mr Kaddour) who acknowledged that he held the belief that the Applicant was an unlawful non-citizen and “[a]ccordingly, I caused the applicant to continue to be detained at VIDC, and I took no steps to effect his removal”. Obviously enough, it must nevertheless be recognised that the decision to continue the detention of the Applicant ultimately rested with the Minister and not officers in the position of Mr Kaddour.

63    Paragraph 42.2 of the Defence filed in November 2020, which pleads that “the applicant’s detention during the period referred to has been for the purpose of removing him from Australia”, is rejected. The pursuit of any “purpose”, let alone a “purpose of removing [the Applicant] from Australia”, had been abandoned.

64    The assertion in the Commonwealth’s Defence that the Applicant’s detention since August 2018 “has been for the purpose of removing him from Australia” and the drawing of the inference is even more exceptional in the context of the failure on the part of the Respondent to pursue, or even give any apparent consideration to, whether the Applicant may have claims for protection not resolved by the Refugee Review Tribunal in its January 2013 decision. That Tribunal clearly formed the view that the Applicant was not a credible witness. But, relevantly, the Tribunal formed the view that the Applicant was not an Iraqi national. In doing so, the Tribunal found (in part) as follows:

Credibility and country of reference

[70]    I am positively satisfied that the applicant has not provided truthful information about critical aspects of his background, including his identity and nationality. I do not accept the applicant’s evidence that he grew up in the Al Mansour district of Baghdad. I am not satisfied he is an Iraqi citizen as he claims. My finding in this regard fundamentally undermines the credibility of the applicant to the extent that I do not accept any material particular of the claims he has advanced.

…

[78]    I am positively satisfied that the applicant’s claim to have been born and grown up in the Al Mansoor district of Baghdad is not true. I find that the applicant is not an Iraqi national as he claims. I have considered whether it is possible that the applicant lived elsewhere in Iraq, but because I can think of no reason why the applicant would falsely claim to have resided in Baghdad when he resided elsewhere in Iraq, I find instead that he is not an Iraqi national. I do not consider it is an appropriate exercise for me to consider the applicant’s claims on the hypothetical basis that he is Iraqi given the strength of my concerns that he is not. I have considered whether to make findings against the applicant’s claims with respect to Iraq in the alternative, in case I am wrong about this finding. However, I decline to do this because I have no doubt that the applicant is not an Iraqi citizen as he claims.

It was this decision which the Applicant unsuccessfully sought to have set aside in the Federal Circuit Court: [2014] FCCA 1036.

65    The reason why:

    the assertion in the Defence; and

    the drawing of the inference founded (inter alia) upon the fact that the Commonwealth has not taken any steps to inquire into or give consideration to whether the Applicant may have protection claims which have not been considered,

is disturbing, is because:

    the Department has known since June 2016 that the Applicant was at least a resident of Iraq, or at least had access to information supportive of citizenship of Iraq. So much is recorded in an Identity Assessment Report prepared by an Identity Research Officer within the Department and dated 10 June 2016.

If the Identity Assessment Report alone be not sufficient to have triggered the necessity to give consideration to whether the Applicant did in fact have protection claims which had not been considered, such consideration afresh of those claims should have been triggered by:

    the information set forth in the withdrawal of the request for removal signed by the Applicant in March 2019;

    the email photos and video forwarded to Mr Kaddour on 16 January 2020; and

    the request made in the Removal Conversation on 10 March 2020 that the Applicant wished to “continue [his] visa appeals”.

66    What consideration should have been given by the Respondent to whether the Applicant did in fact have – or even may have had – further claims for protection which had not been considered was a matter for the Respondent. But the one course which it is respectfully considered the Respondent could not pursue was to do nothing.

67    Nor is there any reason to make any different finding of fact for the period between January through to May 2021. The absence of like consideration being given during that period of time to those matters which have driven the finding now made as to the Commonwealth having abandoned the pursuit of any purpose which may have rendered the Applicant’s detention lawful, similarly drives the finding that the responsible Minister did not consider – and, more importantly, did not have his attention in the Departmental Submission drawn to – those matters of central relevance to the continued unlawful detention of the Applicant. Had the Minister’s attention been drawn to such matters, it is most unlikely that the Minister would have done nothing. In all probability, had the Minister been properly advised in the January Departmental Submission, he would have then done what he ultimately did do some three or four months later in May 2021.

68    Albeit not evidence directed to the Applicant in particular, Mr Alistair Knight, the Director – Europe within the International Policy Division of the Department of Home Affairs, gave evidence as to the reasons why Australia failed to “engage” with Iraq (at least during the period from June 2019 through to March 2020). That evidence was as follows (without alteration):

10.    The following explains my general understanding of why we did not engage with Iraq on any issues during my tenure as Director. I recall this was because:

10.1    Iraq had significant political instability after the defeat of the Islamic State and regularly sees mass protests or government’s unable to form after elections. Many of the sectarian issues underpinning the post-2003 conflict remained unresolved, militia groups regularly operate as the private security arms of political parties, and the Iraqi Government was perceived as regularly on the brink of collapse.

10.2    This was especially the case in 2019 when regular, large-scale protests against corruption and sectarian political agendas resulted in hundreds of deaths and thousands wounded.

10.3    Between late November 2019 and the start of 2020, Iraq did not formally have a prime minister, with the incumbent acting as a caretaker until May 2020.

10.4    Given this instability, I perceived that Iraqi interlocutors were focussed on their own political (and sometimes physical) survival, and had little appetite for engagement with Australia on an issue that is only significant to Australia.

11.     These protests and resulting instability are well covered in contemporary media coverage. I also had a knowledge of these issues due to my experience over a number of years working in the Middle East, including in Baghdad, and my regular meetings with officers of the Department of Foreign Affairs and Trade. I remained informed throughout my tenure as Director of the situation in Iraq.

12.    I do not recall making a formal decision not to engage with Iraq on the issue of the involuntary removal or unlawful non-citizens during my tenure as Director of Middle East and Africa.

13.    However, during my tenure as Director, I held the view that there would be a very low likelihood of success in engaging with Iraq on any issues, because of the difficulties I have outlined at paragraph [10] above. Given this low likelihood of success as well as the competing priorities within the Division and resource constraints, neither myself nor any member of my team under my direction engaged with Iraq on any issues. I consider that this was because I had implicitly decided that there would be no success in engaging with Iraq and that the Division’s limited resources would be better spent on other issues.

Although this explanation may go some way towards explaining why the Department took no steps to approach Iraq with a view to determining whether the Applicant could be returned there, either on a voluntary or involuntary basis, it provides no explanation as to why the Department failed to take other steps open to it to secure the removal of the Applicant to some other country or even to secure his release from detention by the grant of some form of visa.

Unlawful detention and release from detention – “detain” meaning “lawfully detain”?

69    The finding of fact that subsequent to March 2019 the Respondent was taking no steps to secure or attempt to secure the removal of the Applicant from Australia (and taking no steps to grant – for example – the Applicant a protection visa or some other form of visa) carries with it the consequence that his detention thereafter became unlawful.

70    There nevertheless remains – perhaps somewhat surprisingly – a question as to whether the scheme of the Migration Act (including the “objects” of the Act as set forth in s 4 and ss 189, 196 and 198 in particular) dictates that an unlawful non-citizen must continue to be detained even though that detention has become unlawful.

71    In Plaintiff S4 [2014] HCA 34, (2014) 253 CLR 219, a question arose as to the power of the Minister to grant a temporary safe haven visa, which precluded the making of an application for a protection visa. The applicant had been kept in detention for more than two years while an assessment was undertaken as to his refugee status. After making their observations ([2014] HCA 34 at [30], (2014) 253 CLR at 232-233) that s 196 “prescribes the duration of immigration detention” and that that section provides for the detention of an unlawful non-citizen “until the happening of one of four events”, French CJ, Hayne, Crennan, Kiefel and Keane JJ there went on to state as follows that it was “necessary to explain that conclusion” (at 233 to 234):

[31]    First, s 199 must be put aside from consideration. …Section 199 had, and has, no application relevant to this case.

[32]    Second, if it is assumed, for the purposes of argument, that each of the last three events identified in s 196(1) as marking the end of immigration detention (removal to a regional processing country, deportation and the grant of a visa) was an event that could happen in the plaintiff’s case, none was an event that had to happen. If one of those events did happen, immigration detention would end. But if none of the three events occurred, removal under s 198(2) had to occur “as soon as reasonably practicable” (emphasis added).

[33]    The duration of the plaintiff’s lawful detention under the Act was thus ultimately bounded by the Act’s requirement to effect his removal as soon as reasonably practicable. It was bounded in this way because the requirement to remove was the only event terminating immigration detention which, all else failing, must occur.

[34]    It follows that the Executive’s consideration (while the plaintiff was in immigration detention) of whether he might seek and be granted a protection visa had to be undertaken within that framework. As already observed, the authority to detain the plaintiff is an incident of the power of the Executive to remove the plaintiff or to permit him to enter and remain in Australia, and the plaintiff’s detention is limited to what is reasonably capable of being seen as necessary to effect those purposes. The purpose for his detention had to be carried into effect as soon as reasonably practicable. That is, consideration of whether a protection visa may be sought by or granted to the plaintiff had to be undertaken and completed as soon as reasonably practicable. Departure from that requirement would entail departure from the purpose for his detention and could be justified only if the Act were construed as permitting detention at the discretion of the Executive. The Act is not to be construed as permitting detention of that kind.

[35]    In the Act’s operation with respect to the plaintiff, the requirement to remove unlawful non-citizens as soon as reasonably practicable is to be treated… as the leading provision, to which provisions allowing consideration of whether to permit the application for, or the grant of, a visa to an unlawful non-citizen who is being held in detention are to be understood as subordinate. The powers to consider whether to permit the application for, and the grant of, a visa had themselves to be pursued as soon as reasonably practicable. Unless those powers were to be exercised in a way that culminated in the plaintiff’s successfully applying for the grant of a visa, his detention had to be brought to an end by his removal from Australia as soon as reasonably practicable. That is, the decision to exercise the power under s 46A, any necessary inquiry, and the decision itself, must all be made as soon as reasonably practicable. Otherwise, the plaintiff’s detention would be unlawful.

(footnotes omitted)

Their Honours further observed in respect to the argument that the Minister had to decide whether to permit the plaintiff to make a valid application for a protection visa (at 239):

[58]    For the reasons which have been given, the Minister cannot exercise other powers under the Act in a manner which would defeat the Minister’s consideration of the exercise of power under s 46A and thereby deprive the prolongation of the plaintiff’s detention of its purpose. It follows that it is not open to the Minister to detain the plaintiff for any purpose other than the determination, as soon as reasonably practicable, of whether to permit the plaintiff to make a valid application for a protection visa. And, without the Minister deciding whether to permit the plaintiff to make a valid application for a visa, the powers to remove the plaintiff from Australia do not apply and may not be engaged.

Of particular importance to the present case are the observations of French CJ, Hayne, Crennan, Kiefel and Keane JJ in Plaintiff S4 that:

    the Act is not to be construed as “permitting detention at the discretion of the Executive” (at [34]); and

    in the absence of a decision being made as to (for example) removal from Australia “as soon as reasonably practicable… the … detention would be unlawful…” (at [35]).

72    The force of these observations is not diminished by reason of the fact that, as Senior Counsel for the Commonwealth quite properly pointed out, the plaintiff accepted in that case that he was “liable to detention”: [2014] HCA 34 at [9], (2014) 253 CLR at 227. Senior Counsel for the Commonwealth further submitted in writing that the Court in Plaintiff S4 “was not saying that a failure to discharge the duty to remove as soon as reasonably practicable results in the conclusion that there was a departure from the purpose of detention”. Whether that is so or not may be left to one side. It is sufficient to note the observations of their Honours as to the Act not “permitting detention at the discretion of the Executive” and their observations as to when detention would become “unlawful”.

73    On any view, however, their Honours were not addressing a factual scenario in which the Executive had (inter alia) abandoned any pursuit of the purpose of removing the Applicant from Australia and the Executive had failed to give any consideration to whether he could be (or should be) released from detention pursuant to some form of visa, such as a bridging visa. Had consideration been given “as soon as reasonably practicable” after March 2019 to the grant of some other form of visa, the continued detention of the Applicant would have been lawful pending that consideration: cf. [2014] HCA 34 at [58], (2014) 253 CLR at 239 to 240. But on the facts as found in the present case and as accepted in the Defence, that was not the “purpose” being pursued. No such consideration was being given to such a course.

74    Given these findings of fact in the present case, there is little reason not to conclude – as did their Honours in Plaintiff S4 – that upon the failure of the Respondent to take any steps to bring about any one or other of the “four events” provided for in s 196(1) and the failure to take any such steps as soon as reasonably practicable, the detention of the Applicant became unlawful.

75    The sole remedy, so the Commonwealth contended, was the making of an order compelling the performance of the “duty” imposed by s 198.

76    That proposition is rejected. An order in the nature of habeas corpus would be a remedy that the Court could grant in an appropriate case: e.g., Plaintiff M47/2012 [2012] HCA 46 at [108] (2012) 251 CLR 1 at 57 to 58 per Gummow J; Plaintiff M68/2015 v Minister for Immigration and Border Protection [2016] HCA 1 at [158]-[159], (2016) 257 CLR 42 at 104 to 105 per Gageler J. But that, it is concluded, is not the sole remedy in circumstances where detention has become “unlawful”.

77    There is nothing on the natural and ordinary meaning of the terms employed in ss 189 and 196 which would preclude an order being made for the release from detention of an unlawful non-citizen upon their detention ceasing to be lawful.

78    Contrary to the contention of the Commonwealth, it is respectfully concluded that upon the natural and ordinary meaning of the terms of ss 189 and 196, the term “detain” as used in those provisions means “lawfully detain”.

79    There can be no questioning the proposition that one of the most fundamental of common law rights is the right to freedom and liberty. Any statutory constraint upon the exercise of that right is one which must be expressed in the clearest and most unequivocal of terms and, in the absence of a contrary statutory express or necessarily implied power to detain, an order in the nature of habeas corpus will issue: cf. Lau v Calwell (1949) 80 CLR 533 at 556 per Latham CJ and at 581 per Dixon J (as his Honour then was). See also: Potter v Minahan (1908) 7 CLR 277 at 305 per O’Connor J. Justice Thawley recently set out the case law relevant to the “principle of legality” nicely in Newman v Minister for Health and Aged Care [2021] FCA 517 at [77] to [80].

80    Such an approach to the construction of ss 189 and 196 is, with respect, far from novel. Albeit dealing with a different – but an analogous statutory regime – Mason CJ in Lim v The Minister for Immigration and Local Government and Ethnic Affairs (1992) 176 CLR 1 at 12 concluded in respect to a provision comparable to s 198(6) of the current Migration Act:

… a failure to remove a designated person from Australia “as soon as practicable” pursuant to s. 54P(1), after that person has asked the minister in writing to be removed, would, in my view, deprive the Executive of legal authority to retain that person in custody. So also would a failure to remove a designated person from Australia pursuant to the terms of s. 54P(2) and (3).

…

… it would be quite extraordinary to ascribe to Parliament an intention to require a court not to release a person held in unlawful custody. Unless a clear and unambiguous intention to do so appears from a statute, it should not be construed so as to infringe the liberty of the subject. Furthermore, such a clear and unambiguous intention is not sufficiently manifested by the use of general words. …

Gleeson CJ (diss) in Al-Kateb [2004] HCA 37, (2004) 219 CLR 562 at 577 voiced a similar (and long established) approach to the construction of statutory provisions as follows:

[19]    Where what is involved is the interpretation of legislation said to confer upon the Executive a power of administrative detention that is indefinite in duration, and that may be permanent, there comes into play a principle of legality, which governs both Parliament and the courts. In exercising their judicial function, courts seek to give effect to the will of Parliament by declaring the meaning of what Parliament has enacted. Courts do not impute to the legislature an intention to abrogate or curtail certain human rights or freedoms (of which personal liberty is the most basic) unless such an intention is clearly manifested by unambiguous language, which indicates that the legislature has directed its attention to the rights or freedoms in question, and has consciously decided upon abrogation or curtailment. That principle has been re-affirmed by this Court in recent cases … It is not new. In 1908, in this Court, O’Connor J referred to a passage from the fourth edition of Maxwell on Statutes which stated that “[i]t is in the last degree improbable that the legislature would overthrow fundamental principles, infringe rights, or depart from the general system of law, without expressing its intention with irresistible clearness” [(Potter v Minahan (1908) 7 CLR 277 at 304)].

81    Similarly, in Commonwealth of Australia v Fernando [2012] FCAFC 18, (2012) 200 FCR 1 at 19 to 20, Gray, Rares and Tracey JJ observed:

[87]    By prescribing conditions governing the circumstances in which an officer can exercise the power to detain an unlawful non-citizen in s 189(1) the Parliament struck a balance between the effective administration of the Act and the need to protect individuals from arbitrary deprivation of their liberty: …

…

[89]    …No-one can be deprived of his or her liberty in this nation unless the deprivation is authorised by law: … Here the power to cause the administrative detention of an individual under ss 189 and 196 of the Act is extraordinary. It is a power that invades an interest, liberty of the person, that the common law has valued highly and has gone to great lengths to protect through the writ of habeas corpus, and the torts of false arrest and false imprisonment.

[90]    The Court should be slow to condone significant failures by officials to comply with the requirements mandated by the Parliament in order for persons lawfully to exercise power under s 189(1) to deprive a person of his or her liberty.

[91]    In Plenty v Dillon [1991] HCA 5; (1991) 171 CLR 635 at 654 Gaudron and McHugh JJ said, in a passage cited with approval by Mason CJ, Brennan, Gaudron and McHugh JJ in Coco v The Queen (1994) 179 CLR 427 at 436, that:

[I]nconvenience in carrying out an object authorised by legislation is not a ground for eroding fundamental common law rights.

…

(some citations omitted)

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.

AJL20?

87    An alternative approach, and one which it is respectfully considered is the appropriate course for a single Judge of this Court to take, is to follow the decision of Bromberg J in AJL20.

88    In AJL20 his Honour concluded (inter alia) that “the applicant has, since 26 July 2019, been unlawfully detained by the Commonwealth and that an order directed to the Commonwealth should be made commanding it to release the applicant from detention forthwith”: [2020] FCA 1305 at [10]. After 26 July 2019 until 27 November 2019 the Commonwealth, it had there been found, had taken “no active steps …to effect the applicant’s removal from Australia”: at [8]. In the course of so concluding, his Honour set forth the arguments of the applicant in that proceeding as follows:

[34]    The applicant relies upon the following principles which he contended are apparent from the discussion in S4:

…

(d)    fourth, it is not the case that the Act authorises the continued detention of a person “until” the “event” of removal is effected, irrespective of whether the purpose of removal is in fact being pursued. But if the Act were to be so construed (as the Commonwealth submits) it would authorise “departure from [a valid] purpose” of detention, and would be to that extent unconstitutional; and

…

His Honour returned to this argument subsequently and concluded:

[75]    Returning to the proper construction of the critical provisions of the Act, it follows from the foregoing discussion that I accept that the fourth principle contended for by the applicant and set out above at [34] is correct. Administrative detention under the Act is not necessarily authorised “until” one or other of the events specified in s 196(1) has occurred. For administrative detention under the Act to be lawful it must be detention for a purpose which the Act provides for, removal from Australia being one such permissible purpose. Where there is a departure from the permissible purpose for the detention, the detention will no longer be lawful irrespective of whether one or other of the events specified in s 196(1) has in fact occurred. That is so because it is a condition of the lawfulness of a detention that the detention be for a permissible purpose.

His Honour proposed to list the hearing for the determination of damages. On 17 December 2020 the appeal of his Honour’s decision instituted in the Full Court of the Federal Court was removed into the High Court: Attorney-General of the Commonwealth v Commonwealth of Australia [2020] HCATrans 224. Argument took place on 13 April 2021: Commonwealth of Australia v AJL20 [2021] HCATrans 68. Judgment has been reserved.

89    Neither the “object” of the Migration Act as set forth in s 4 nor the definition in s 5(1) of the term “detain” dictated any contrary conclusion by Bromberg J. Even though s 4(2) states that a visa is “the only source of the right of non-citizens to … remain”, that provision says nothing expressly as to the statutory power (or duty) to “detain” an unlawful non-citizen, and implicitly recognises that where there is no power to “detain” it is imperative for consideration to be given to the grant of a visa.

90    The proper construction of ss 189 and 196 which has now been embraced has some obvious overlaps with the arguments advanced in AJL20. There is the same reliance upon, for example, the decision in Plaintiff S4. But the construction which has been settled upon has been dictated by what it has been concluded is the proper construction of the term “detain” as meaning “lawfully detain”. That construction has been reached separately from the reasoning of his Honour in AJL20 and is a construction free from any implications that may be drawn from Constitutional constraints, a matter which impacted upon the reasoning of his Honour.

91    The approach to the construction of the term “detain” thus provides a different path whereby the same ultimate conclusion as that reached in AJL20 can be and should be reached.

92    In the event that the appeal in AJL20 were to be allowed by the High Court, that result would not necessarily dictate the same result in the present proceeding. Much would obviously depend upon the reasoning of their Honours when resolving the appeal in AJL20 and any observations made by their Honours as to whether the term “detain” is susceptible of being confined to “lawfully detained”.

93    It is thus unnecessary to resolve the arguments advanced on behalf of the Commonwealth that the decision in AJL20 is “plainly wrong” and should not be followed.

94    If it were necessary to resolve that argument, it is sufficient to note that the arguments advanced on behalf of the Commonwealth as to why the decision in AJL20 was “plainly wrong” repeated in the present proceeding much the same arguments as were advanced to the Court differently constituted in CYG20: [2021] FCA 259 at [74] to [85]. It serves no useful purpose, with respect, to repeat those same arguments or to again attempt to summarise, albeit in different terms, the arguments which have oft been repeated on behalf of the Commonwealth.

95    Clearly enough, there is a tension between (on the one hand) the construction now given to the term “detain” and the approach of Bromberg J in AJL20, and (on the other hand) the observations (for example) of Hayne J in Plaintiff M47/2012 [2012] HCA 46 at [177] to [178], (2012) 251 CLR at 78. His Honour there explained that there was “no middle ground” between being a lawful non-citizen and an unlawful non-citizen, the terms of s 189 requiring that an unlawful non-citizen “must be detained”. There remains, however, some uncertainty in his Honour’s unqualified statement that there is “no middle ground” and his subsequent observation that an unlawful non-citizen “may, usually must, be detained…” However that uncertainty be resolved, his Honour was not addressing factual circumstances where – as in the present case – the Respondent was not detaining an unlawful non-citizen for any purpose other than detention as an end in itself and had, indeed, both abandoned the pursuit of any attempt to remove the Applicant from Australia, and failed to pursue lines of inquiry as to whether facts which had come to light in June 2016 and again repeated in March 2019 warranted reconsideration of a claim for protection.

96    And without recounting all of the Commonwealth’s arguments as to why the decision in AJL20 was “plainly wrong”, there was also the same reliance in the present case (as there was in AJL20) upon the following observations of the Full Court of this Court in Minister for Immigration and Multicultural and Indigenous Affairs v Al Masri [2003] FCAFC 70, (2003) 126 FCR 54 (“Al Masri”) at 87-88 per Black CJ, Sundberg and Weinberg JJ:

[134]    The first of the two limitations found by the trial judge was that s196 was limited in operation to such time as the Minister was taking all reasonable steps to remove a detained person from Australia as soon as reasonably practicable. This limitation emerged from a reading of the power to detain in s 196(1) as subject to the duty imposed upon the Minister by s 198(1) to remove as soon as reasonably practicable. Although the two provisions are part of the same scheme, we would not read them together in this way. If the Minister were not fulfilling his duty under s 198(1) to remove as soon as reasonably practicable the detention would, in our view, still be lawful and the appropriate remedy would be an order in the nature of mandamus to compel the Minister to take the steps required for the performance of his duty.

Before the primary Judge in AJL20, the reliance on this decision was there rejected upon the basis that these observations of their Honours in Al Masri pre-dated the decisions in Al-Kateb, Plaintiff M76, Plaintiff S4 and Plaintiff M96A/2016 v Commonwealth [2017] HCA 16, (2017) 261 CLR 582 and were “inconsistent with the observations made by the Full Court in [ASP15 v Commonwealth [2016] FCAFC 145, (2016) 248 FCR 372]”: [2020] FCA 1305 at [69]. The conclusions expressed in Al Masri and those of (inter alia) Hayne J in Plaintiff M47/2012 disclose, clearly enough, a tension, if not an inconsistency, in the authorities. But it cannot, with respect, be concluded that the reasoning of Bromberg J in AJL20 is “plainly wrong”.

97    Should it be necessary, however, to express a view as to the correctness of the reasoning of Bromberg J in AJL20, it is sufficient for present purposes to simply note that it would be difficult to conclude that that decision of his Honour was “plainly wrong” such that it should not be followed by a single Judge of this Court. Again, it serves little purpose to repeat – albeit perhaps in different language – the substance of the reasons given by Bromberg J, including his Honour’s analysis of (inter alia) Plaintiff M76 and Al-Kateb. His Honour’s analysis of the decisions of the High Court and the decisions of the Full Court of this Court are not, with respect, “plainly wrong”.

DAMAGES?

98    The consequence of the conclusion now reached is that the Applicant has been unlawfully deprived of his liberty and should have been released from detention soon after March 2019 or (at the very latest) by no later than mid-2019.

99    The Applicant claims damages quantified in his Counsel’s closing written submissions totalling “at least” $420,250 as follows:

    general damages of at least $315,000;

    special damages of up to $50,250;

    aggravated damages of $5,000; and

    exemplary damages of $50,000.

The Commonwealth denies liability but contends, in the alternative, that any claim for damages would result in only nominal damages upon the principal basis that the Applicant was at all material times liable to detention and not his freedom. Such was the ultimate outcome in (for example) Ruddock v Taylor [2005] HCA 48, (2005) 222 CLR 612.

100    The manner in which the Applicant’s claim for damages for his unlawful detention is to be approached is comparable to the manner in which damages are assessed in respect to a claim for false imprisonment. The general principles of relevance to the assessment of a claim for false imprisonment are equally applicable to the facts of the present case.

101    It has been further concluded that:

    damages should be assessed upon the basis that had the relevant Minister properly applied the law, the most likely scenario is that the Minister would have granted the Applicant a bridging visa soon after the withdrawal of the request for removal to Iraq or within a reasonable period thereafter – that being what has been described as the “counter-factual”;

    general damages should be assessed in the sum of $350,000; and

    there are no factors which would aggravate or provide reason to award any greater sum.

General principles

102    In Goldie v Commonwealth (No 2) [2004] FCA 156, (2004) 81 ALD 422 at 428, French J (as his Honour then was) outlined the manner of assessment of damages in circumstances comparable to those now before the Court as follows:

The assessment

[14]    The assessment of damages for false imprisonment is necessarily informed by the general proposition that (J Fleming, The Law of Torts, 8th ed, LawBook Co, Sydney, 1992, p 29):

False imprisonment trenches not only upon a person’s liberty but also on his dignity and reputation, and this is reflected in the calculation of damages.

The compensatory damages are assessed by reference, inter alia, to the duration of the deprivation of liberty and to hurt or injury to the plaintiff’s feelings, that is to say the injury, mental suffering, disgrace and humiliation suffered as a result of the false imprisonment: F Trindade and P Cane, The Law of Torts in Australia, 3rd ed, Oxford University Press, Melbourne, 1999, p 302.

[15]    In a recent decision in the New South Wales Court of Appeal – Ruddock v Taylor (2003) 58 NSWLR 269 – the court considered an appeal on liability and an appeal and cross-appeal on assessment in relation to a judgment for damages made against the Minister for Immigration for wrongful imprisonment of the respondent arising out of his detention under the Migration Act. The respondent’s visa had been cancelled and the cancellation was subsequently found, in the High Court, to be invalid – Re Patterson; Ex parte Taylor (2001) 207 CLR 391; 182 ALR 657; 64 ALD 545. The respondent had been detained for periods of 161 and 155 days on the basis, later held to be incorrect, that he was an alien. The minister unsuccessfully denied civil liability in the proceedings in the Supreme Court. Damages of $116,000 were awarded against him. The Court of Appeal dismissed his appeal in respect of both liability and damages and also dismissed the cross-appeal. On the question of liability, Spigelman CJ said (at 272 [4]):

False imprisonment is an intentional tort. Liability turns on an intention to detain. Good faith is not a defence. The only defence is lawful authority.

[16]    On the damages issue his Honour said (at 279 [49]):

Damages for false imprisonment cannot be computed on the basis that there is some kind of applicable daily rate. A substantial proportion of the ultimate award must be given for what has been described as “the initial shock of being arrested” (Thompson v Commissioner of Police of the Metropolis [1998] QB 498 at 515). As the term of imprisonment extends the effect upon the person falsely imprisoned does progressively diminish.

The appropriate counter-factual – liberty by mid-2019?

103    When assessing damages for false imprisonment, or when assessing the quantum of damages for unlawful detention, it is essential at the outset to identify the appropriate “counter-factual”. It is essential to identify the position the claimant would have been in had the unlawful detention not occurred.

104    The necessity to undertake such an inquiry has been recently highlighted by the decision of the High Court in Lewis v Australian Capital Territory [2020] HCA 26, (2020) 94 ALJR 740. Although a decision cancelling Mr Lewis’ periodic detention and resulting in his ongoing detention was there held to be vitiated by a denial of procedural fairness, it was further concluded that he would nevertheless have remained in custody. Nominal damages of $1 had been awarded. An appeal was dismissed. Kiefel CJ and Keane J agreed with Edelman J. In separate reasons for reaching the same conclusion, Gageler J set forth the role played by the “counter-factual” analysis as follows (at 752):

[29]    The analysis at the stage of attributing tortious liability is thus as to “how things came about” without needing to extend to “what made a difference”. Counterfactual analysis enters at the subsequent stage of determining whether, and if so to what extent, the liability of the Territory gives rise to an entitlement on the part of Mr Lewis to compensatory damages.

The compensatory principle

[30]    The compensatory principle entitles the victim of a tort to no less and no more than “a sum which, so far as money can do, will put that party in the same position as he or she would have been in if the … tort had not been committed”.

[31]    No threshold of “loss” needs to be met before the counterfactual analysis mandated by the compensatory principle is applied. Whether, and if so to what extent, compensable damage – “loss or harm occurring in fact” – has occurred is determined through the application of the same analysis. The outcome determines the entitlement of the victim of the tort to compensatory damages and sets the outer limit of the extent of that entitlement.

(footnotes omitted)

His Honour continued (at 753):

[35]    The correct approach is to look to the position that Mr Lewis would have been in had the Board not in fact conducted the inquiry that it did and had the Board not in fact gone on to make the order on which the Chief Executive in fact acted. Notwithstanding the inherently hypothetical nature of that counterfactual inquiry, the inquiry necessarily proceeds by drawing inferences from known facts to find the counterfactual position on the balance of probabilities.

[36]     The fact-specific inferential nature of the requisite counterfactual inquiry is, however, subject to an important qualification. The qualification arises from the application to the determination of compensation of the same common law policy that underlies imposition of tortious liability for wrongful imprisonment whenever, but only when, there is a deprivation of liberty that cannot be justified by law. Consistent application of that policy means that compensation for wrongful imprisonment can only be determined by postulating a counterfactual in which all who had lawful capacity to contribute to a deprivation of liberty conducted themselves strictly in accordance with law. The law would be an ass were a person whose position in fact is that he or she has been deprived of liberty by unlawful conduct to be denied compensatory damages through the application of a counterfactual in which he or she would have been deprived of liberty by the same or other unlawful conduct in any event.

[37]    The policy of the common law therefore demands that counterfactual analysis in a case of wrongful imprisonment be undertaken on the assumption that everyone who had lawful capacity to contribute to deprivation of the plaintiff's liberty acted in strict performance of their legal duties and acted or refrained from acting in strict compliance with the conditions expressly or impliedly imposed on the exercise of their legal powers.

(footnotes omitted)

This approach, his Honour further observed (at [38]), accorded with the approach of the Full Court of this Court in Fernando v Commonwealth [2014] FCAFC 181, (2014) 231 FCR 251 (“Fernando”).

105    On the facts of the present case it has been concluded that the appropriate “counter-factual” is that the Applicant would have been at liberty and released from detention soon after March 2019, and by no later than mid-2019, because either:

    he should have been released because thereafter there was no authority to continue his detention, the term “detain” meaning “lawfully detain” or because the decision in AJL20 is not “plainly wrong” and should be followed; or

    had the Minister given consideration to the plight of the Applicant soon after March 2019 (or within a reasonable period of time thereafter) he would have granted the Applicant a visa, that being so notwithstanding the Ministerial decision taken in January 2021 not to intervene pursuant to s 195A of the Migration Act.

Each of these conclusions should be expanded upon.

106    As to the former conclusion, it is an understatement to acknowledge that the Commonwealth quite properly repeated its submission that a construction of the term “detain” as meaning “lawfully detain” would “create a gap in the statutory scheme” and would “undermine” the objects of the Migration Act. Reliance was placed, not surprisingly, upon (inter alia) the observations of Kiefel and Keane JJ in Plaintiff M76/2013 [2013] HCA 53, (2013) 251 CLR 322 at 379-381 and, in particular, their Honours’ observations that the “scheme of the Act contemplates that only aliens who hold a visa are entitled to be at large in the Australian community.”

107    Although no observations of the High Court should be read or construed in a restrictive manner, as opposed to a manner throwing light especially upon, for example, the proper construction of a legislative scheme, their Honours were not there directing attention to a factual context in which the Commonwealth had abandoned any attempt to remove an unlawful non-citizen from Australia and where the Commonwealth was failing to give consideration to whether claims for protection should be pursued or whether a person could be released from detention by the grant of a visa. As noted by French CJ, in Plaintiff M76/2013 the Minister “[had] not as yet made a determination whether or not to allow the plaintiff to apply for a visa”: [2013] HCA 53 at [4], (2013) 251 CLR at 334-335. In the event that a decision were to be made not to allow her to apply, the “question whether she can be detained indefinitely thereafter, where there is no other country to which she can be sent, may arise”. The proceeding was not one in which warranted, the Chief Justice observed, consideration of the “correctness of the decision … in Al-Kateb”.

108    As to the latter conclusion, and the alternative route whereby it has been concluded that the appropriate counter-factual is that the then relevant Minister would have secured the release of the Applicant by no-later than mid-2019, it has been assumed – as it should be assumed – that the then Minister at all material times would act in accordance with law and do all such things as would be necessary to comply with the law. It may be noted that the Minister as between August 2018 through to December 2019 was a person other than the current Minister, namely the Hon. David Coleman. Had the then Minister directed his attention to the plight of the Applicant soon after March 2019 – or within a reasonable period of time thereafter – he would have realised that his officers were not:

    taking any steps to secure the Applicant’s removal from Australia, that being the only “purpose” relied upon, as accepted in the Commonwealth’s Defence; and/or

    giving any consideration to whether the Applicant could be – or should be – granted some other form of visa, especially in circumstances where there were readily available facts from as early as June 2016 and again in March 2019 which called for consideration.

The Minister would have realised that the continued detention of the Applicant was unlawful and could not continue. Continuing unlawful detention, he would have recognised, was a situation which could not be countenanced.

109    Assuming that the Applicant was not entitled to be released from detention soon after the withdrawal of his request in March 2019, on the facts of the present case it has thus been further concluded that the position the Applicant would most likely have been in, had the unlawful detention not occurred, is that the Minister would have granted him a bridging visa soon after (or within a reasonable period after) the withdrawal of his request for removal in March 2019. That conclusion is supported to some considerable extent by:

    the grant of a bridging visa to the Applicant in May 2013 – there then being apparently no reason why such a visa could not then be granted; and

    what in fact happened at the outset of the present hearing, namely the grant of the May 2021 visas.

The conclusion is also supported by:

    the terms of the Decision Instrument signed by the Minister on 4 May 2021 – that Instrument recording the opinion of the Minister that it was “in the public interest” to grant the visas there referred to. Just as it was “in the public interest” to remedy the unlawful detention of the Applicant in May 2021 by the grant of those visas, it may equally be inferred that it would have been “in the public interest” to remedy the unlawfulness of his detention at a far earlier point of time, had proper consideration been given to his plight. There was no evidence that any factors of relevance to an assessment of the “public interest” were any different in 2019 than were relevant in May 2021.

110    It may readily be inferred that the Minister would not have pursued a course of continued unlawful detention. The most likely decision that the Minister would have reached in mid-2019 was the same as that which he ultimately made in May 2021 – he would have decided that the unlawful detention of the Applicant could not be countenanced and he would then have granted him a bridging (or some other form of) visa. The object of the Migration Act as set forth in part in s 4(2) would considerably support such an approach. That object there relevantly provides that the grant of a “visa” is the “only source of the right of non-citizens to … remain”. Such an inference should be drawn notwithstanding the decision taken by the Minister in January 2021 not to intervene pursuant to s 195A of the Migration Act and the terms of the Case Review dated 16 March 2021. A different conclusion may well have been reached had the Minister in January 2021 had his attention drawn to those facts upon which it has been found that the Commonwealth had abandoned the pursuit of any purpose which may have rendered the Applicant’s detention lawful. Such a conclusion also does not derogate from the terms of s 195A and in particular the fact that it is a non-compellable power. The conclusion is simply a recognition of what the then Minister would have done had he been fully aware of the Applicant’s plight.

111    Of real concern is that the January 2021 Departmental Submission did not place before the Minister any material or any analysis as to whether the continued detention of the Applicant was lawful or any analysis of the “purpose” being pursued which could potentially render the continued detention lawful. The Minister should not, with respect, be placed in the position whereby he has to draw inferences as to what his officers have or have not been doing for the preceding two years. He should have been expressly told in January 2021 that his officers:

    had not taken any steps to pursue the removal of the Applicant from Australia, if not expressly told that any such efforts had been abandoned; and

    had taken no steps to give consideration to the claims of the Applicant for protection given the changed factual assessment as to the nationality of the Applicant and the basis upon which the Refugee Review Tribunal had first determined his earlier claims for protection.

Given the period of time during which the Applicant had been in detention, there needed to be express advice given to the Minister directed to whether his detention was unlawful. At the very least, there needed to be the disclosure of facts such that the Minister could properly form an assessment as to whether the detention had become unlawful.

112    Had the Minister for Immigration (i.e., the Hon. Alex Hawke) been properly advised in January 2021, it may safely be assumed that he would in all likelihood have intervened under s 195A, as he ultimately did in May 2021. But to make any inquiry as to what that Minister may or may not have done perhaps says little as to what the Minister responsible for that portfolio in March 2019 through to mid-2019, namely the Hon. David Coleman, would have done had he been properly advised at that earlier period of time.

113    The decision of Jagot J in Guo v Commonwealth [2017] FCA 1355, (2017) 258 FCR 31 (“Guo”), it should be acknowledged, stands in contrast to the conclusion reached in the present proceeding. Unlike the facts of the present proceeding, including the concessions made in both the Defence as to the sole “purpose” being pursed and the written submissions and findings of fact made as to the appropriate “counter-factual”, in Guo Jagot J concluded that had the Commonwealth not falsely imprisoned Mr Guo, he would nevertheless have remained in detention. Such is not the finding of fact in the present proceeding.

The facts – deprivation of liberty for about two years

114    Even if it be accepted, as it should be, that a reasonable period of time subsequent to 13 March 2019 should be permitted in order to enable the Respondent to effect the removal of the Applicant from Australia – assuming a period of some two or three months to be reasonable – the consequence of the conclusion is that the Applicant has been deprived of his liberty for a period of about two years.

115    The manner in which any assessment of damages is to proceed is difficult. However calculated, the damages should include any amount which compensates the Applicant for both:

    the deprivation of his liberty;

and an amount to compensate him for:

    the mental stress he has endured, that being the subject-matter of the evidence of Ms Herrero.

There is no sufficient case made out for exemplary or other damages.

116    In respect to the need for damages to accommodate what may broadly be described as the mental stress suffered by the Applicant, Ms Claudia Herrero (being a Counsellor with the NSW Service for the Treatment and Rehabilitation of Torture and Trauma Survivors) gave evidence as to her providing counselling services to the Applicant. Those counselling sessions took place on a number of occasions from 7 April 2020 through to 16 December 2020. Her affidavit helpfully sets forth the following summary of her observations, namely:

12.    During the sessions, the Applicant presented variously as:

    (a)    distressed;

    (b)     anxious;

    (c)    irritable and agitated;

    (d)    on occasions with angry verbal outbursts (raising his voice);

    (e)    visibly upset;

    (f)    indicating he was socially isolating from others;

    (g)    with flat affect;

    (h)    with a significant low mood; and

    (i)    withdrawn during the sessions.

13.    I recorded the above in the Reports, for example:

    (a)    with a significant low mood…;

    (b)     with flat affect…;

    (c)    agitated or irritable…;

    (d)    distressed… ;

    (e)    visibly upset… .

14.    In the Applicant’s case, the above symptoms were either:

    (a)    observed (by me as the Applicant’s counsellor);

      (b)    expressed by the Applicant (during psychological examination by administering psychological instruments);

      (c)    presented by the Applicant as being of his concerns and worries; and / or

    (d)    presented by the Applicant as a matter of complaint.

Her “assessment” of the Applicant was that he presented with a “low mood” which is “a feature of depression”:

As noted above, during the sessions the Applicant presented with low mood. This is a feature of depression, and is indicated by infrequent eye contact, the gaze usually focused on the floor, lack of or no interest in daily (or any) activities or subject matter, appearance of apathy, severe dissatisfaction, poor explanations, short sentences, …

That evidence and that assessment is accepted.

The assessment - $350,000

117    An assessment as to damages in the sum of $350,000, it has been concluded, adequately addresses the damages to which the Applicant is entitled. That assessment, needless to say, has no mathematical certainty or precision. Damages cannot be awarded, for example, upon the basis that there is “some kind of applicable daily rate”: Ruddock v Taylor [2003] NSWCA 262 at [49], (2003) 58 NSWLR 269 at 279 per Spigelman CJ.

118    But that assessment is at least consistent with the amount that Jagot J would have awarded in Guo had it not been found that Mr Guo would in any event have been detained. After referring to a number of other authorities, her Honour in Guo observed (at 101 to 102):

[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 231 FCR 251 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 (No 5) I do not consider Mr Guo’s case analogous to that of Mr Nye in Nye v New South Wales [2004] Aust Torts Reports 81-725 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 (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 (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 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 a 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.

(without alteration)

119    In Fernando, it may also be noted, the primary Judge had expressed the view that if damages were not to be nominal, $265,000 should be awarded. Of this sum, Besanko and Robertson JJ concluded on appeal that the “assessment seems to us to be low, but not so low as to indicate error”: [2014] FCAFC 181 at [113], (2014) 231 FCR 251 at 274. The period of detention in that case was a period of 1,203 days.

120    The guidance provided by these decisions has been applied in reaching the sum of $350,000.

Aggravating factors?

121    There were potentially three factors which were canvassed in either the evidence or submissions which could have impacted upon the assessment of damages in the sum of $350,000. But each factor, upon consideration, does not lead to any different conclusion. Each should nevertheless be briefly addressed.

122    First, some evidence was directed to the circumstances in which the Applicant was taken into detention in August 2018. On the Applicant’s case there was some suggestion that excessive force was used and that he was exposed to some humiliation by reason of his detention having been observed by neighbours. Although there was some divergence in the evidence of those who gave evidence on behalf of the Respondent and who were cross-examined, it is concluded that:

    a search warrant had been applied for and granted on 8 August 2018;

    a copy of that search warrant was presented to (at least) the Applicant’s partner who was present at the time;

    the steps taken to secure the detention of the Applicant commenced at about 6:00am on 10 August 2018, slightly before sunrise;

    those involved in the detention of the Applicant announced on several occasions, including before entering the premises at which the Applicant was detained and after entering those premises, that they were officers of the Australian Border Force;

    no excessive force was employed in detaining the Applicant; and

    no neighbours were present to observe the detention taking place.

No occasion for the award of exemplary or aggravated damages arises, notwithstanding some reservation as to why it was necessary:

    that about 10 officers of the Australian Border Force were required to execute the warrant; and

    to handcuff the Applicant, especially in circumstances where the Applicant – at most – indicated some concern as to what was happening by raising his voice.

It may nevertheless be noted that both Messrs Flack and Lea gave evidence that the handcuffing of the Applicant was appropriate given either the terms of some departmental policy or to ensure the safety of the Applicant and those detaining the Applicant. In the absence of some reason for concern as to safety or a concern as to the necessity to handcuff a person in order to ensure his detention, the Minister should give reconsideration to any policy directive that handcuffing should be undertaken in all cases. In some circumstances, handcuffing may be necessary or appropriate; in other circumstances, especially in those where the person being detained offers no resistance and manifests compliance, handcuffing may be seen as unnecessary. The definition of the term “detain” in s 5, it may be noted, refers to “taking such action and using such force as are reasonably necessary…” What “force” and what steps such as handcuffing may be “reasonably necessary” obviously invites a factual inquiry dependent upon the circumstances of any individual case. But a universal policy of handcuffing an unlawful non-citizen may well be open to serious question.

123    Second, it was submitted on behalf of the Applicant that there was no change in the policy or approach of those officers responsible for the detention of unlawful non-citizens subsequent to the decision in AJL20 on 11 September 2020. The circumstances in which those responsible for detention continued to believe that they could lawfully detain a non-citizen remained the same both before and after that decision. Although it may readily be accepted that those administering the Migration Act should do so in accordance with both the terms of that Act and the manner in which it is to be applied as clarified by decisions of this Court, a failure to not immediately reformulate any policy subsequent to the decision in AJL20 does not, it is respectfully considered, warrant any departure from the already assessed general damages of $350,000.

124    Third, at one stage during the course of the hearing a question arose as to the relevance of an email sent on 30 September 2019. That email stated in part as follows:

We have identified potential error in the BVA grant of this detainee, which was made personally by the Minister under s195A…

A claim for legal professional privilege as to the balance of the email was later waived. The question which arose was whether the Respondent was on notice as from September 2019 that there was a “potential error” which may have even then questioned the lawfulness of the detention of the Applicant thereafter. But any such question was not pursued in final submissions and can thus be placed to one side.

125    In summary, there was no reason to question the general assessment of damages in the sum of $350,000. That figure stands as the assessment of the damages to which the Applicant is entitled.

CONCLUSIONS

126    It has been concluded that the continued detention of the Applicant soon after March 2019 or (in any event) by mid-2019 had become unlawful, and that he should have then been released from detention either because:

    the term “detain” as employed in ss 189 and 196 should be construed as “lawfully detain”; and/or

    the decision in AJL20 is not “plainly wrong” and should be followed and applied by a single Judge of this Court.

In the absence of clear and unambiguous statutory language, no construction of ss 189 or 196 should be readily embraced which would render lawful the continued detention of an unlawful non-citizen, in circumstances where the Commonwealth has both abandoned the pursuit of any attempt to remove the Applicant from Australia (be that removal on either a voluntary or involuntary basis) and failed to give any consideration to whether he could be released – even in circumstances where facts which had come to light in June 2016 and again repeated in March 2019 warranted reconsideration of a claim for protection.

127    Separate from any conclusion as to whether or not the Applicant should have been released from detention soon after March 2019 or (in any event) by mid-2019, it has further been concluded that:

    had the then Minister properly considered the plight of the Applicant at that point of time, he would in all likelihood not have countenanced the continued unlawful detention of the Applicant and would in all likelihood have granted him a visa;

    the Applicant’s claim for unlawful detention should be determined upon the basis that he would have thereby secured his release from detention at about that time; and

    the Applicant’s claim for unlawful detention should thus succeed and he should be awarded $350,000 by way of general damages.

128    Costs should follow the event.

THE ORDERS OF THE COURT ARE:

1.    The Respondent is to pay the Applicant within 28 days damages assessed in the sum of $350,000.

2.    The Respondent is to pay the costs of the Applicant, either as agreed or assessed.

Associate:    

Dated:    7 June 2021