Federal Court of Australia

Kamal v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 200

ORDERS

THE COURT ORDERS THAT:

1.    The first respondent’s name be amended on the Court’s file for this proceeding to ‘Minister for Immigration, Citizenship and Multicultural Affairs’.

2.    The application for a writ of habeas corpus be dismissed.

3.    The time in which the applicant may bring an application for judicial review be extended to 26 September 2022.

4.    The application for judicial review be dismissed.

5.    The applicant pay the respondent’s costs of the proceeding, to be fixed by way of a lump sum or, in default of agreement, by way of a single lump sum fixed by a Registrar.

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

REASONS FOR JUDGMENT

MORTIMER J:

1    This proceeding involved two separate applications: an application for a writ of habeas corpus, centring on the alleged invalidity of the cancellation decisions which deprived the applicant of his visa, and an application for judicial review of the decision of the Administrative Appeals Tribunal where the Tribunal upheld a delegate’s refusal to revoke the visa cancellation. The judicial review application requires the Court to grant an extension of time.

2    For the reasons set out below both applications must be dismissed.

Background

3    There is no real dispute about the applicant’s background. He was born in Ethiopia on 10 June 1986. When the applicant was three years of age, his mother, his father, and his aunt, who I will call AM in these reasons, fled Ethiopia to a refugee camp in Kenya. He lived there until 1997.

4    The applicant lost his mother in 1989, and last saw his father in 1991, subsequent to which he was cared for and raised by AM. In Kenya, AM met and married SJ. SJ left Kenya for New Zealand in 1994. Three years later, in 1997, AM, with the applicant, joined SJ in New Zealand as refugees. He obtained New Zealand citizenship, and remains a New Zealand citizen.

5    In 2000, AM and SJ’s marriage ended, and AM and the applicant relocated to Australia. At that time, the applicant was around 14 years of age.

6    On entry into Australia, the applicant was granted a Class TY (subclass 444) visa.

7    The applicant had not received any formal education while at the refugee camp in Kenya. While in New Zealand, he gained some literacy skills. Once in Australia, he recommenced school, before abandoning it again in year eight.

8    On 18 April 2002, the applicant was convicted of his first offences relating to drug use. Between that date and 14 January 2022, when he was taken into custody at the Melbourne Immigration Transit Accommodation detention centre, the applicant has spent the majority of his time in Australia in prison after conviction for various offences, the last of which was on 20 July 2018. This included a sentence on 6 June 2008 of four years’ imprisonment for the offences of intentionally cause serious injury and affray (2008 conviction).

9    While in Australia, the applicant’s visa has been purportedly cancelled three times:

(a)    On 15 March 2005, the applicant was notified that a delegate of the Minister had cancelled his visa (first cancellation). That decision was made under s 501(2) of the Migration Act 1958 (Cth). In the decision, the delegate relied on a sentence imposed on 28 May 2004 of 14 months’ imprisonment for the offences of burglary and false imprisonment. On 21 March 2005, he sought review of that decision in the Tribunal, and on 14 June 2005 the Tribunal decided to revoke the first cancellation, and his visa revived.

(b)    On 4 May 2009 the applicant was notified that a delegate of the Minister had cancelled his visa (second cancellation). That decision was also made under s 501(2). For the second cancellation, the delegate relied on the 2008 conviction. On 28 July 2009, the Tribunal decided to revoke the second cancellation, and the applicant’s visa was again revived.

(c)    On 21 July 2016, the applicant was notified that a delegate of the Minister had cancelled his visa (third cancellation). The third cancellation was made under s 501(3A) of the Migration Act. In the decision, the delegate relied on the 2008 conviction. On 8 August 2016, the applicant requested that the Minister revoke the third cancellation. For some reason not explained in the evidence, there was no decision on that revocation request for almost four years. On 24 January 2020, the applicant was notified that his revocation request had been unsuccessful. On 5 February 2020 he filed an application in the Tribunal for merits review of the refusal to revoke the third cancellation. On 1 April 2020, the Tribunal heard the applicant’s application. The applicant filed written closing submissions between 6 and 16 April 2020, with the assistance of another prisoner. On 24 April 2020, the Tribunal affirmed the decision not to revoke the third cancellation (Tribunal decision).

10    It is the Tribunal decision, in relation to the third cancellation, that is the impugned decision for the purposes of the applicant’s judicial review application.

The Tribunal decision

11    The Tribunal was constituted by two members, who agreed the decision under review should be affirmed. The Tribunal explains at [3] that, because of COVID-19 restrictions, the review hearing would not be conducted in person:

A hearing was held on 1 April 2020. Owing to the current public health emergency, the hearing was by electronic means, under section 33A of the Administrative Appeals Tribunal Act 1975 (the AAT Act). Mr Kamal made submissions and gave evidence by video link, and was cross-examined by Mr Christopher Orchard of Sparke Helmore Lawyers, who appeared by telephone representing the Respondent. The Applicant called three witnesses who gave evidence by telephone.

12    This description of the hearing omits some matters central to the applicant’s judicial review ground: in particular, that the applicant did not receive the “‘G’ documents” which were to form the basis of the material on review until the day of the review hearing, and indeed once the hearing had commenced.

13    After setting out the material before the Tribunal, the Tribunal explained what occurred after the review hearing:

At the conclusion of the hearing, the Tribunal gave leave for both parties to provide further written submissions on the material and evidence before the Tribunal. The Applicant provided written closing submissions on 6 April 2020 and the Respondent on 9 April 2020. Both parties provided further closing submissions in reply, the Applicant on 15 April 2020, and the Respondent on 16 April 2020. The Applicant had a further opportunity to provide final submissions in reply by 17 April 2020, however he did not provide further submissions. The applicant told the Tribunal that he had been assisted by another prisoner in preparing written submissions.

14    There being no issue about the applicant not passing the character test, the Tribunal correctly instructed itself that the sole issue was whether it considered there was “another reason” why the visa cancellation should be revoked. It set out the applicant’s convictions and sentences, the factual background to the applicant’s circumstances and noted it was required to apply the Ministerial policy set out in Direction No 79. It then went through the applicant’s evidence to the Tribunal, including the applicant being confronted with the Tribunal’s reasons on the review of the second cancellation where the Tribunal expressed its “hesitation” in revoking the cancellation, but stated it did so out of compassion for the applicant, and to give him a “second (and final) chance”: reasons at [41].

15    The Tribunal went through with the applicant the fact he had breached conditions imposed on suspended sentences given to him, and also considered the applicant’s evidence about how he had changed. The Tribunal then considered the evidence given by the applicant’s witnesses and the parties’ submissions. From [71] of its reasons, the Tribunal went through sequentially the matters set out in Direction No 79. It is not necessary to rehearse all of the Tribunal’s reasons.

16    It is fair to say the Tribunal did not accept most of the applicant’s exculpatory explanations about his offending, and found there was “at least a moderate risk” the applicant would re-offend: at [87]. At [97], the Tribunal made a finding about what would occur if the applicant were removed, in the context of considering any issues of non-refoulement:

Mr Kamal is a naturalised citizen of New Zealand, so if the cancellation of his visa is not revoked, that is the country to which he would be repatriated.

17    Later in its reasons, the comparatively secure systems of social security, welfare and employment opportunities in New Zealand disposed the Tribunal to find that the impediments if the applicant were to be removed were not significant: see [113]-[118].

18    The Tribunal’s conclusions are expressed at [120]-[125]:

SUMMARY AND CONCLUSION

We have considered the written and oral submissions of both the Applicant and the Respondent, and the documents before us. We have found that two of the primary considerations weigh heavily against the Applicant, and the other primary consideration is not engaged and weighs neutrally. In regard to the other considerations, we have found that they are either not relevant or, in respect to the strength, nature and duration of ties and the extent of impediments if removed, they both weigh slightly in Mr Kamal’s favour.

We accept that the early life of Mr Kamal was traumatic, involving displacement, deprivation, the loss of his mother and the disappearance of his father. While there is some doubt about whether his father may not have disappeared permanently and may, according to one report, have been relocated, we do accept the Applicant’s evidence that he has had no contact with his father since being very young. This backdrop of Mr Kamal’s early life was obviously a significant factor in the 2005 decision of the Tribunal to give him ‘one last’ chance to cease offending. He failed to heed that clear warning.

In spite, again, of his visa being cancelled for a second time some three or so years later, and going through the process of the Tribunal deliberating and, on the strength of assurances made by Mr Kamal, restoring his visa, the Applicant has, perhaps not steadily, but certainly somewhat relentlessly, continued to re-offend. This must be seen through the lens, which Mr Kamal freely admitted in evidence, of acute awareness of the potential immigration consequences if he continued to re-offend.

Accepting that the Applicant was helped in the preparation of his closing submissions to the Tribunal by another person, it is necessary for us to explicitly record that any notion in those submissions that the Tribunal should apply a “three strikes tolerance policy”, as it is described, is rejected as completely misconceived. Mr Kamal knew that he held a temporary visa. In fact, his state of knowledge was better than many holders of the same class of visa, precisely because that visa had twice before been cancelled, and had been twice restored, as we have said, after solemn assurances were made of no more offending by the Applicant.

We accept that the assault at HM Prison Barwon was within the precincts of an institution and related, apparently, to internal interactions there, but it was nevertheless a very violent attack, and not one done in self-defence. That Mr Kamal continues to argue this proposition, and did so in written submissions after the hearing, cast in our minds serious doubt about his acceptance of the determination of the Court, and hence contributes to a view that he may re-offend. The re-offending may, or may not, be of a similar violent nature, but with Mr Kamal having a criminal history which includes involving other serious assaults in the community, that could not be entirely ruled out. There is, at least as we have found, and as a clinical psychologist found in 2012, a moderate risk of re-offending, which has not abated. The evidence of violent conduct just months after that assessment is proof of that. With this background, and Mr Kamal’s efforts at the hearing to essentially seek to paint a gloss of ‘self-defence’ on his serious attack on a fellow prisoner, we conclude it is an unacceptable risk. In this context, we were also troubled by his statement in evidence that he is not “a violent person and would never do anything to harm anyone.” The evidence of his criminal convictions contradicts that assertion.

We have weighed all the considerations, individually and cumulatively, and considered the particular circumstances of the case, as we are required to by paragraph 6.1(2) of the Direction. We find that the discretionary power provided for in s 501CA(4)(b)(ii) of the Act is not enlivened, in this case. That is, we find there is not ‘another reason’ why the mandatory cancellation of the visa should be revoked. As a consequence, the Tribunal finds that the decision under review not to revoke the mandatory cancellation of Mr Kamal’s visa was the correct decision in law and the preferable decision where a discretionary power may be exercised.

This proceeding

19    The hearing in this proceeding was conducted on 8 November 2022. At the hearing, the Court granted leave to the parties to file further submissions. This was primarily due to the Minister’s submission that the applicant had not given notice to the Minister of certain contentions advanced by counsel for the applicant at hearing. The parties filed further submissions during November 2022.

Evidence

20    The applicant and Minister each read two affidavits. There were two affidavits from the applicant:

(a)    an affidavit dated 20 February 2022 and filed 21 February 2022, annexing the impugned Tribunal decision (February affidavit); and

(b)    an affidavit dated 4 October 2022 and filed 11 October 2022 (October affidavit). In that affidavit, the applicant deposes to his difficulties reading and writing, to impairments from mental illness and COVID-19, to the conditions of his detention, to the process before the Tribunal, and to his circumstances between the Tribunal’s decision and time at which he affirmed the affidavit in early October 2022.

21    The Minister read two affidavits:

(a)    an affidavit of Noreen Munawar Hussain dated 20 October 2022 and filed the same day (Hussain affidavit). This affidavit went to the habeas corpus application. Ms Hussain deposes to being employed by the Department of Home Affairs as a status resolution officer at the MITA detention facility, and to being allocated responsibility for a number of detainees that include the applicant. Ms Hussain deposed also to her satisfaction about the lawfulness of the applicant’s detention; and

(b)    an affidavit of Bree Catherine Power dated 26 October 2022 and filed 27 October 2022. Ms Power deposes to having held the position of senior integrity officer in the Department’s “Citizenship Integrity and Assurance Section”, and to having previously held the role of status resolution officer at the MITA. At the MITA, her role included responsibility for a number of detainees including the applicant. She deposes to the responsibilities of status resolution officers, and to her involvement with the applicant.

22    There were no objections to any of the affidavit material.

Resolution

Habeas Corpus

23    Counsel for the applicant advanced three bases for seeking habeas corpus; two contended “factual” bases, and one contended “legal” basis. Counsel submitted the two factual bases were sufficient for the writ to issue, and if the Court agreed, it need not reach the legal argument. The applicant relied principally on Guo v Commonwealth of Australia [2017] FCA 1355; 258 FCR 31, and the reference in that case to Goldie v Commonwealth of Australia [2002] FCA 433; 117 FCR 566 and Commonwealth v Okwume [2018] FCAFC 69; 263 FCR 604, as well as Jones v Dunkel [1959] HCA 8; 101 CLR 298.

24    The premise of the habeas corpus application is set out at [19] of the applicant’s written submissions:

a delegate cannot validly rely on a conviction to cancel a visa where the Tribunal has previously excused the visa holder from cancellation arising from the very same conviction.

25    In turn, counsel for the applicant contends the Minister must prove that the applicant’s detaining officer had reasonable suspicion that the applicant’s visa had been lawfully cancelled, and in the circumstances, the Minister cannot prove that because there is no evidence the detaining officer considered whether there was indeed a lawful basis for the visa cancellation. The parties agreed that at the relevant time Ms Hussain was the applicant’s detaining officer, and it was her suspicion that the applicant was an unlawful non-citizen that needed to be reasonable.

26    The applicant submitted that there is a “clear and cogent” heavy burden of proof on the Minister, as the detainer: citing McHugh v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 223; 283 FCR 602 at [2], [57], [60] (Allsop CJ), [90] (Besanko J), [294] (Mortimer J). In response, the Minister submitted, also by reference to McHugh, that the applicant bears an evidentiary burden to adduce evidence so as to put in cause the legality of his detention: citing McHugh at [60] (Allsop CJ), [91]-[95] (Besanko J), [267]-[268], [284]-[285] (Mortimer J); AWK22 v Commonwealth of Australia [2022] FCA 869 at [7]-[9].

27    The applicant particularly sought to rely on the following propositions with reference to the Hussain affidavit:

(a)    Ms Hussain had been the applicant’s detaining officer since 29 June 2022;

(b)    the applicant’s written submissions in this proceeding were filed on 26 September 2022, containing the argument that the visa cancellation was unlawful;

(c)    Ms Hussain was informed by “Anthony”, a legal officer at the Department, that the applicant (at [19]-[20]):

was arguing in the Federal Court that he cancellation of his visa was invalid and so he should be released from detention. This was the first time I had heard of Mr Kamal saying he should not be in detention for a legal reason.

I am only aware generally of the Federal Court case, including that it is about whether the sentence that Mr Kamal received in 2008 could be relied upon in his2016 cancellation. I am not a lawyer. I do understand that the Department is currently defending the case, and so I understand that the Department is disputing that Mr Kamal’s visa cancellation is invalid.

(d)    Ms Hussain states at [13] that she did not speak to the applicant after 29 June, and did not conduct a formal interview with him, although she recalls attempting to call him;

(e)    Ms Hussain spoke to the applicant on 19 October 2022, and was told by the applicant that he had a judicial review application pending where he has sought to appeal the Tribunal’s decision regarding his visa cancellation, and that he had a legal representative helping him to prepare supporting documents for his case; and

(f)    Ms Hussain then deposes:

After Anthony told me about the case, I looked at Mr Kamal’s ICSE records again and reminded myself of Mr Kamal’s immigration and criminal history more generally. Even though I now understood him to be legally challenging the decision, based on his records I still suspected that Mr Kamal was an unlawful non-citizen, including because he did not currently hold a valid visa. I therefore formed the view that I was required to continue to detain Mr Kamal.

28    Counsel for the applicant contended Ms Hussain’s evidence reproduced at (f) verged on “wilful blindness”, because she did not seek any information as to the lawfulness or otherwise of the applicant’s detention, for example by asking for legal advice from Anthony, but rather looked only at the applicant’s ICSE records, the latest entry on which was dated 21 February 2022.

29    For completeness, these are the key parts of Ms Hussain’s affidavit at [10]-[12]:

… I checked his relevant ICSE records, as well as reviewing his case notes, and the immigration history tab within the Community Protection Assessment Tool …

Bree [Ms Hussain’s colleague with previous responsibility for the applicant] had also given me a spreadsheet with some notes about Mr Kamal’s case which I read. That document also contains information about other detainees and so I have not annexed it to my affidavit. I focused upon, relevant to the issue of lawfulness of detention, the “last escalation details” in that document. That showed that Mr Kamal’s TY444 visa was cancelled under s501, on 24 April 2020 the AAT affirmed refusal, and in February 2022 judicial review proceedings were commenced. I also noted from that document that the last review was on 7 June 2022.

Having read those documents, I understood Mr Kamal: (1) was not an Australian citizen; (2) was not an aboriginal or Torres Strait Islander Australian; (3) did not hold a valid visa; and (4) was therefore an unlawful non-citizen. I therefore formed the view that I was required to detain Mr Kamal.

30    The first “factual” basis was contended to be that Ms Hussain could not have had a reasonable suspicion the applicant is an unlawful non-citizen without fully engaging with what counsel for the applicant termed “the conflicting [legal] positions”, which were said to be evident from the parties’ filed written submissions in this proceeding.

31    The applicant relied on Jagot J’s summary of relevant principles in Guo at [35]:

In determining whether an officer’s suspicion that a person is an unlawful non-citizen was reasonable:

(1)    “in order to justify arrest and detention, the suspicion that a person is an unlawful non-citizen must be justifiable upon objective examination of relevant material. Given that deprivation of liberty is at stake such material will include that which is discoverable by efforts of search and inquiry that are reasonable in the circumstances” (Goldie v Commonwealth (2002) 117 FCR 566 (Goldie) at [4]);

(2)    “[r]easonable suspicion … lies somewhere on a spectrum between certainty and irrationality. The need to ensure that arrest is not arbitrary suggests that the requirement for a reasonable suspicion should be placed on that spectrum not too close to irrationality” (Goldie at [5]);

(3)    an officer is “not empowered to act on a suspicion reasonably formed that a person may be an unlawful non-citizen. The officer is to detain a person whom the officer reasonably suspects is an unlawful non-citizen” (Goldie at [6]);

(4)    “an officer in forming a reasonable suspicion is obliged to make due inquiry to obtain material likely to be relevant to the formation of that suspicion” (Goldie at [6]);

(5)    “[f]irst, whether a suspicion is reasonably held must be judged in the light of the facts available to the officer at that particular time. Second, the awareness of conflicting facts that are discarded or ignored has a tendency to undermine the reasonableness of the suspicion otherwise held. Third, reliance upon stale or out of date information, or a partial search of the record without making more recent inquiries, may constitute unreasonable conduct” (Kostopoulos v Commonwealth [2012] NSWSC 1534 (Kostopoulos) at [54]);

(6)    the facts as they appear at the time must be sufficient to induce the required state of mind in a reasonable person (George v Rockett (1990) 170 CLR 104 (George v Rockett) at 112);

(7)    the required state of mind is suspicion, not belief, so that the “facts which can reasonably ground a suspicion may be quite insufficient reasonably to ground a belief, yet some factual basis for the suspicion must be shown” (George v Rockett at 115). But even if it is “belief” which is required (in contrast to a mere suspicion), “the assent of belief is given on more slender evidence than proof” (George v Rockett at 116);

(8)    it is the detaining officer who must have the relevant state of mind, but that state of mind “may be based on hearsay material or materials which may be inadmissible in evidence”, provided the materials “have some probative value” (Hyder v Commonwealth (2012) 217 A Crim R 571 (Hyder) at [15](4)). Thus, an officer “is entitled to form a belief based on what they have been told. The reasonable belief may be based on information which has been given anonymously or on information which turns out to be wrong. The question whether information considered by the arresting officer provided reasonable grounds for the belief depends on the source of the information and its context, seen in the light of the whole of the surrounding circumstances and, having regard to the source of that information, drawing inferences as to what a reasonable person in the position of the independent observer would make of it” (Hyder at [15](8) referring to O’Hara v Chief Constable of Royal Ulster Constabulary [1997] AC 286 per Lord Hope);

(9)    “whether the relevant person had reasonable grounds for forming a suspicion or a belief must be determined not according to the subjective beliefs of the police at the time but according to an objective criterion” (Hyder at [15](7) referring to Anderson v Judges of District Court (NSW) (1992) 27 NSWLR 701 at 714 per Kirby P);

(10)    “[t]he identification of a particular source, who is reasonably likely to have knowledge of the relevant fact, will ordinarily be sufficient to permit the Court to assess the weight to be given to the basis of the expressed [state of mind] and, therefore, to determine that reasonable grounds for [it] exist” (Hyder at [15](9) quoting New South Wales Crime Commission v Vu [2009] NSWCA 349 at [46]); and

(11)    in Okwume v Commonwealth [2016] FCA 1252 (Okwume) Charlesworth J said that:

[130]     Where the context is one in which a person is detained by an officer under s 189 of the Act on the basis of a suspicion that the person’s visa has been cancelled, the suspicion will not, in my opinion, be objectively reasonable if the officer at the relevant time knows, or ought reasonably to know, matters that would put a reasonable person in the officer’s position on notice that the cancellation decision is irregular or ineffective.

[131]     It is to be borne in mind that the High Court [in Ruddock v Taylor] expressly rejected there being any relevant distinction between mistakes of fact and mistakes of law in assessing the reasonableness of an officer’s suspicion under s 189 of the Act. It follows, in my opinion, that the Court must ascertain the knowledge that the detaining officer had or ought reasonably to have had, not only in respect of the facts, but also in respect of the requirements of the law. Again, the question of whether a detaining officer ought reasonably to have known the requirements of the law will turn on the whole of the legal and factual context in which the impugned act of detention occurs.

(Amendments to quotes in original.)

32    Relying on Guo, and the authorities cited by Jagot J in the extract above, the applicant submitted that in order to form a reasonable suspicion in the circumstances disclosed by the evidence, Ms Hussain was required to ask for legal advice about the lawfulness of the cancellation decision. The applicant submits that Ms Hussain did not do so.

33    The second “factual” basis was contended to be that (transcript at p 6, ll 17-19):

factually habeas [corpus] should issue in this case … because it would not be a reasonable suspicion that my client is an unlawful non-citizen without the legal position articulated in XJLR being settled.

34    XJLR v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 6; 289 FCR 256 is a decision of the Full Court of this Court, concerning a second exercise of the power in s 501(3A) – that is, the mandatory cancellation power. The majority in XJLR found that the High Court’s conclusions in Minister for Immigration and Border Protection v Makasa [2021] HCA 1; 270 CLR 430 concerning a second exercise of the cancellation power in s 501(2) of the Migration Act, read with ss 33(1) of the Acts Interpretation Act 1901 (Cth), were applicable to a second exercise of the cancellation power in s 501(3A).

35    Counsel for the applicant clarified that this second argument sought to apply the legal position articulated in XJLR to the circumstances in this case, and – importantly – to the different sequence of powers exercised in respect of the applicant. Counsel contended that it is settled that a legally ineffective cancellation means that a person holds a visa and is still a lawful non-citizen, meaning that the residual question is whether that proposition applies to the case at hand. Counsel contended that, at a factual level, an officer acting reasonably cannot assume, particularly in a situation where there are conflicting positions put by way of submissions in a legal proceeding, that a person is an unlawful non-citizen.

36    The third basis was described by counsel for the applicant as the “legal” argument in support of the applicant’s claim for the issue of the writ of habeas corpus. By this basis, the applicant contended that the purported cancellation of the applicant’s visa was “legally ineffective”. Counsel for the applicant relied particularly on the specification in the third cancellation that:

On 6 June 2008 you were convicted of intentionally cause serious injury and sentenced to four years imprisonment.

The information based on which the decision maker was satisfied that you do not pass the character test is sentencing remarks of the County Court of Victoria at Melbourne on 6 June 2008 and the National Police Certificate dated 27 June 2016.

(Original emphasis.)

37    The applicant contends that Makasa, PYDZ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 14; 289 FCR 304 and XJLR support the applicant’s contention that such a cancellation based on a conviction could not be legally effective where the applicant had been previously “excused” by the Tribunal for that conviction (which, the applicant contends, was what occurred in the second cancellation: see written submissions at [19]).

38    The applicant relied particularly on the reasons of Rares J in XJLR at [70]-[72]:

In Makasa (2021) 386 ALR at 205 [23] and [27], Kiefel CJ, Gageler, Keane, Gordon and Edelman JJ construed s 501(2) as conferring a discretionary power on the Minister that could be exercised only once in respect of any particular failure to pass the character test, regardless of the subsequent occurrence of a new event or provision of new information that would otherwise be relevant to the Minister’s exercise of the discretion to cancel the visa. They held that s 33(1) of the AI Act did not alter the incidents of the particular statutory power to which s 33(1) applies and that this resulted in a significant limitation of the scope of its application to the power in s 501(2) (at 209 [46]). The power of the Minister under s 501A to override a decision of a delegate or the Tribunal under s 501(2) without any new fact, sentence or occurrence being present reinforced that construction (at 210–211 [52]–[55]).

Section 501BA confers a relevantly similar power on the Minister to override a s 501CA(4) decision of a delegate or the Tribunal to revoke a cancellation under s 501(3A). Of course, ss 501(2) and 501(3A) are structured differently because the former creates a discretion while the latter creates a duty. However, by dint of ss 501A and 501BA, the Minister can override the decision of each of a delegate or the Tribunal, respectively, not to cancel a visa under s 501(2), or to revoke the mandatory cancellation of a visa pursuant to s 501(3A) under the discretionary power in s 501CA(4). Those powers are exercisable where the Minister is satisfied that the person does not pass, respectively, the general character test (provided in ss 501(2) and 501A(2)(d)) or the particular character test (provided in s 501(3A)(a) and 501BA(2)(a)) and, in each case, the Minister is satisfied that the cancellation is in the national interest (ss 501A(2)(e), 501BA(2)(b)). The Minister’s power to override the discretionary decision to cancel a visa pursuant to s 501(2) (under s 501A(2)) and the discretionary decision to revoke a mandatory cancellation pursuant to s 501(3A) (under s 501BA(2)) can be exercised regardless of whether there is any different factual context that was before the delegate or Tribunal whose decision the Minister is overriding.

While the statutory powers in ss 501(2) and 501A(2), on the one hand, and ss 501(3A), 501CA(4) and 501BA(2) on the other, are capable of being enlivened in different factual settings, they operate within an overall statutory scheme. That scheme respectively allows or requires the cancellation of a visa if particular facts exist (including the satisfaction of the decision-maker). It contemplates that, where the Minister did not make the decision personally, he or she can override it provided that the person has failed to satisfy the Minister that he or she passes the relevant character test and the cancellation is in the national interest. In Makasa 386 ALR at 210 [50], Kiefel CJ, Gageler, Keane, Gordon and Edelman JJ said that it would make a mockery of the conferral of the Tribunal’s function “to do over again” what the delegate has done under s 501(2) in a review if the subject matter of the decision (there, not to cancel the visa), were s 33(1) of the AI Act to operate so that the Tribunal’s decision was “able to be revisited by the primary decision-maker in the unqualified re-exercise of the same statutory power already re-exercised by the [Tribunal] in the conduct of the review”. Critically, their Honours held (at 210–211 [54]–[55]):

However, the circumstance that each of the specific powers conferred on the Minister by s 501A(2) and (3) can only be exercised by the Minister personally and can only be exercised if the Minister is satisfied that cancellation is in the national interest is sufficient to invoke the well-settled principle of construction that “when a statute confers both a general power, not subject to limitations and qualifications, and a special power, subject to limitations and qualifications, the general power cannot be exercised to do that which is the subject of the special power”. The further qualifications imposed by s 501C on an exercise of power under s 501A(3) reinforce the application of that interpretative principle.

Hence, s 501A of the Act must be read as manifesting a legislative intention to exclude re-exercise by the Minister or a delegate of the more general power conferred by s 501(2) of the Act, read in light of s 33(1) of the AI Act, to revisit and reverse a previous decision of a delegate not to cancel a visa made in the exercise of the power conferred by s 501(2) where there has been no change to the factual basis on which the previous decision-maker, be it the Minister or a delegate or the AAT, formed a reasonable suspicion that the visa holder did not pass the character test in making the previous decision not to cancel a visa.

(Emphasis omitted.)

39    The applicant’s counsel contended this reasoning, as applied to s 501(2), can equally be applied to s 501(3A), the provision relied upon in the third cancellation, notwithstanding that the previous cancellation (the second cancellation) was made under s 501(2) and not s 501(3A).

40    The Minister contends the applicant seeks to widen the propositions emerging from the three cases, and especially XJLR, rather than simply “apply” them. The Minister submits (at [24]-[25]):

… [the applicant’s] formulation is broader than any proposition enunciated in PYDZ or XJLR, on which authorities the applicant seeks to rely (AWS 18]-[19]). PYDZ and XJLR stand only for the proposition that:

where a previous cancellation under s 501(3A) has been revoked under s 501CA(4) a subsequent cancellation under s 501(3A) cannot rely on the same failure of the character test for the purposes of s 501(3A)(a) as had been relied upon in the pre[v]ious cancellation, and a cancellation that did so was invalid.

Here, there was no “previous cancellation under s 501(3A)”, let alone a revocation under s 501CA(4).

(Footnotes omitted.)

41    The Minister also relies on Nuon v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 653 at [41] for the proposition that the powers under s 501 “should not be interpreted impliedly to restrict each other”, and on Chetcuti v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 98; 288 FCR 657 at [22] for the proposition that s 501 confers “separate visa cancellation powers, the enabling criteria for the exercise of which overlap but which are not identical”. The Minister submits (at [28], [32]):

Here, the exercise of the Tribunal’s power in 2009 under s 501(2), in deciding not to cancel the applicant’s visa, did not prohibit the later exercise of the separate power (and duty) under s 501(3A). Even if exercise of the power under s 501(2), based upon the 2008 sentence, might have been spent, the power under s 501(3A) was not.

…

It would be contrary to the Full Court’s decision in Chetcuti to hold that the exercise of the power under s 501(2) prohibited the exercise of power under s 501(3A), based on the same failure to pass the character test.

(Footnotes omitted.)

42    In the alternative, the Minister contends that even if the delegate who made the third cancellation was in error in relying upon the 2008 sentence, that error was not material because there was other evidence before the delegate that “unequivocally showed the applicant did not pass the character test by reason of s 501(7)(c)”, meaning that the delegate was required to cancel the applicant’s visa pursuant to s 501(3A). In particular, the Minister pointed to the national police certificate dated 27 June 2016 annexed to the notification letter of the third cancellation, which disclosed that the applicant had, on 28 March 2012, received an aggregate sentence of 12 months. Since the amendments in February 2023 to the scheme in which s 501(3A) operates, aggregate sentences fall within the definition of “substantial criminal record” in s 501(7)(c).

43    The applicant contends that this point misunderstands the nature of the application for the issue of the writ of habeas corpus. In particular, relying on McHugh at [8], [183], [216] and [247], the applicant submitted that habeas corpus is not an application for judicial review, and as such jurisdictional error and the question of materiality have no role to play. Instead, the applicant relies on the Minister’s onus to prove that the applicant is lawfully detained, including (it appears) proving that the third cancellation is legally effective. He contends, as I understand it, that in making the arguments he has, based on Makasa, XJLR and PYDZ, he has satisfied the evidentiary onus to show there is an arguable basis to question the lawfulness of his detention.

44    The applicant also contends that the Minister’s submissions regarding possible alternate bases for visa cancellation are misguided, because habeas corpus is not a claim for false imprisonment. Rather, counsel for the applicant submitted, the question for determination by the Court “is whether Mr Kamal is lawfully detained here and now”.

45    Nevertheless, counsel for the applicant accepted in oral submissions that this might leave open the possibility, should habeas corpus issue, that the applicant’s visa might possibly be cancelled soon thereafter on the basis of a separate 2016 conviction. In other words, he did not cavil with the proposition that the 2016 conviction brought the applicant within s 501(3A) in terms of having a substantial criminal record, nor that the 2016 conviction had not previously been relied upon for any cancellation of the applicant’s visa.

Habeas corpus: my conclusions

46    The only challenge to the reasonableness of Ms Hussain’s suspicion rests on the asserted application of what I will call the Makasa argument (incorporating in that term the subsequent cases of XJLR and PYDZ) to the applicant’s circumstances. I note the Minister’s special leave application in XJLR was discontinued in October 2022 and there was no special leave application in PYDZ.

47    In his judicial review application, the applicant might have challenged the Tribunal’s decision on the basis of the Makasa argument. It was not a matter raised before the Tribunal, but the applicant was unrepresented there, and the argument strikes at the heart of the lawfulness of the applicant’s visa cancellation. Instead, the Makasa argument is employed only in support of the habeas corpus application. It is said to mean either that he has a visa that is in effect and so he is, and should be declared to be, a lawful non-citizen; or that the detaining officer could not reasonably have formed a suspicion that his visa had been lawfully cancelled once put on notice of this proceeding.

48    Turning first to the two “factual” arguments, challenging the reasonableness of the suspicion formed by Ms Hussain, I consider the Minister has proven there was an objectively reasonable basis for Ms Hussain’s suspicion that the applicant was an unlawful non-citizen.

49    In Montgomery v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1423 and Hobson v Commonwealth of Australia [2022] FCA 418, this Court found a detaining officer did not hold a reasonable suspicion about whether a person who identified as an Aboriginal Australian was an unlawful non-citizen. Those conclusions were reached after the High Court had declared the law in Love v Commonwealth of Australia [2020] HCA 3; 270 CLR 152.

50     In Hobson, SC Derrington J concluded first, that the Minister had failed to prove the existence of a reasonable suspicion throughout Mr Hobson’s detention that he was not an Aboriginal Australian: at [67]. This was enough for the writ of habeas corpus to issue. In the alternative, her Honour held the Minister had not discharged their burden of proof in respect of the particular detaining officer proffered as the officer responsible for Mr Hobson’s detention at the time of trial. Her Honour did so after considering the evidence of the detaining officer, which her Honour sets out at [69]-[73], including the officer’s awareness (tested under cross-examination) about the effect of the High Court’s decision in Love, and what that meant for the suspicion she was required to form about Mr Hobson’s identification as an Aboriginal Australian.

51    The officer had been provided with, and had read, a legal advice from the Australian Government Solicitor which concluded Mr Hobson’s circumstances did not satisfy the test in Love, as the AGS articulated that test (the correct test need not be explored here). Privilege was waived over that advice and it was tendered before her Honour. Her Honour made the following findings:

Despite the evidence that had been identified in the AGS Advice, and as was apparent from the evidence she had read in both Mr Hobson’s affidavit and the Second Aff-CF, Mrs Grindlay made no further enquiries of anyone despite remaining unconvinced about the status of Dharug people to the extent that that was relevant to her decision-making process. [at [73]]

…

Mrs Grindlay’s obligation was not to act on a suspicion reasonably formed that Mr Hobson may not be an Aboriginal Australian but that he is not an Aboriginal Australian. It is apparent that Mrs Grindlay made no inquiries beyond the material she had been given. In particular, she did not seek to interrogate the Commonwealth’s Office of the Registrar of Indigenous Corporations as to its understanding of Dharug people as an Aboriginal society, clan or community. Nor did she make any inquiries of AIATSIS in relation to its ‘working criteria’ for confirmation of Aboriginal or Torres Strait Islander heritage. [at [75]]

…

Ultimately Mrs Grindlay accepted the AGS Advice. Informed by that Advice, Mrs Grindlay’s ‘reasonably suspicion’ rose no higher than that Mr Hobson ‘does not meet, or probably does not meet’, the third limb of the tripartite test. It is not sufficient for a detainer to assert that a person’s detention is probably lawful. The detainer is required to show that the detention is lawful. To the extent that Mrs Grindlay took comfort from the AGS Advice, that is understandable. However, the basis for the conclusion reached in the AGS Advice was contrary to the evidence Mrs Grindlay herself had given in cross-examination as to her understanding of the meaning of the third limb. … [at [82]]

Nevertheless, any advice relied on by an officer in such circumstances must itself be objectively reasonable. … [at [83]]

In my view, the AGS Advice was not itself objectively reasonable. First, it seeks to put a gloss on the decision in Love by its focus on the decision of Nettle J in a manner that is contrary to how Love has been understood in this Court, in particular, in McHugh and Helmbright. Secondly, the reliance on the decision in Gale (No 1) to dismiss or discount the evidence that was before the officer was apt to mislead in the absence of a clear distinction being drawn between the purpose for which evidence was being considered in Gale (No 1), namely to affect rights in rem, and the purpose for which Mrs Grindlay was to assess the evidence, namely to inform her reasonable suspicion as to whether Mr Hobson, as a resident non-citizen of Aboriginal descent, who identifies and is accepted as Aboriginal by elders, is to be treated as an alien. Thirdly, the advice that it would be open to a detaining officer that Mr Hobson ‘does not meet or probably meet’ the third limb of the tripartite test is plainly wrong. A detaining officer cannot discharge the onus of proving the lawfulness of detention on the basis of a suspicion that the detention is probably lawful. For the suspicion to be reasonable, an officer must suspect that the detention is lawful. Mrs Grindlay was equivocal in her suspicion as to whether or not Mr Hobson met the third limb of the tripartite test. Her suspicion that he was not an Aboriginal Australian was, therefore, not reasonable. [at [84]]

(Original emphasis.)

52    There is no doubt that, in Hobson, the Court’s conclusion that the officer’s suspicion was not reasonable drew in part on the officer’s failure to make their own (further) inquiries, although it also drew on the Court’s own view of the legal advice given to the officer. Reliance (in good faith, no adverse credibility findings were made) on legal advice provided to the department was not seen as sufficient in Hobson.

53    While the threshold imposed in Hobson might seem high, I accept it is not necessarily inconsistent with existing authorities, even if the reasoning might take some of the propositions in the authorities to greater lengths. For example, I am not aware of any authority which has previously impugned an officer’s suspicion on the basis of the Court’s own view of legal advice given to the officer but with which the Court did not agree. However, this approach is consistent with the opinion of Jagot J in Guo at [41]:

in answering the question whether it was reasonable for the officer to rely on that advice or policy, the content of the policy and its apparent reasonableness or otherwise, and all surrounding circumstances, must be evaluated. This is a result of the requirement introduced by the qualification of “reasonableness” on the “suspicion”, which is to be assessed objectively in all of the circumstances.

54    In Thoms v Commonwealth of Australia [2022] HCA 20; 401 ALR 529 the High Court dealt with the question of the lawfulness of Mr Thoms’ detention before the Court’s decision in Love that he was not an alien, and therefore not subject to detention and removal from Australia. The decision is centrally concerned with what constitutes a reasonable suspicion for the purpose of s 189(1) of the Migration Act. It also determined that s 189(1) can operate on non-aliens. The second proposition informs the proper construction of ‘reasonable suspicion’, as Gordon and Edelman JJ implicitly observed at [82]. It represents the present statement of the applicable law for a single Judge of this Court.

55    The majority justices variously expressed their descriptions of what is necessary for an officer’s suspicion to be reasonable.

56    At [31], Kiefel CJ, Keane and Gleeson JJ explained that, because s 189(1) deals with the state of mind of a detaining officer:

it does not matter that the applicant here is not an alien. So long as the officers in question had objectively reasonable grounds to suspect that he was a non-citizen who did not hold an effective visa, that was sufficient for his detention to be justified.

(Emphasis added.)

57    Gageler J agreed with their Honours generally, as did Steward J: see [45]-[46] (Gageler J), [87]-[88] (Steward J). At [41-[42], by reference to Ruddock v Taylor [2005] HCA 48; 222 CLR 612, their Honours emphasised that it is necessary to assess “what was known” or “reasonably capable of being known” at the time the detention was first effected, and no “retrospectiv[e]” assessment was to be carried out.

58    At [44], their Honours applied this approach to the evidence in a brief way, concluding s 189(1) required Mr Thoms’ detention at the time, and adding:

True it is that, on 5 November 2018, officer C had received information from which it might be inferred that the applicant might satisfy the tripartite test in Mabo and therefore be an Aboriginal Australian, but the officer did not know and could not reasonably have known that this Court would pronounce in Love that, as a consequence of his Aboriginality, the applicant could not be an alien in the constitutional sense.

(Emphasis added.)

59    The passage at [44] clearly establishes that an officer responsible for the detention of a person under s 189(1) is not required to speculate about the outcome of a court proceeding, nor make up their own minds about what they consider the law to be. Indeed, it would be to invite chaos to require individual departmental officers to make up their own minds about what the law is or what the outcome of a legal proceeding might be. That is particularly the case where a new legal issue is raised, as Thoms 2022 demonstrates. The circumstances in which an officer may be required to question or second guess any legal advice given to them are likely to be limited to circumstances where it is clear the advice is objectively and obviously defective, such that a non-legally trained person such as a detaining officer could reasonably be expected to see the fault in the advice. That in my opinion is the kind of approach the High Court is proposing in [44] of Thoms, and respectfully, one must see Jagot J’s statements in Guo at [41] in that light.

60    Of course, all will depend on the facts, as the authorities repeat time and again. It may be that information given to a detaining officer, or reasonably available to them, cannot support the proposition that the officer’s suspicion was reasonable. Goldie is a good example of this: see the analysis of the facts by Gray and Lee JJ at [8]-[19] in the Full Court decision.

61    At [58] in Thoms 2022, Gordon and Edelman JJ described the method for assessing if an officer’s suspicion is reasonable:

Reasonable suspicion is objective: facts must exist which are sufficient to induce a reasonable suspicion in the mind of a reasonable officer that a person is an unlawful non-citizen. The officer’s reasonable suspicion that a person is an unlawful non-citizen must be “justifiable upon objective examination of relevant material”; but that is something “substantially less than certainty”. The reasonable suspicion may turn out to be wrong but that does not mean that, at all relevant times, the officer did not reasonably suspect that the person was an unlawful non-citizen. The question is whether the reasonable suspicion continued for the duration of the person’s detention. Put in different terms, the reasonable suspicion is temporally bounded: “[s]o long always as the officer had the requisite state of mind, knowledge or reasonable suspicion that the person was an unlawful non-citizen, the detention of the person concerned is required by s 189”. The status, in fact, of the person detained is not determinative, if not irrelevant.

(Emphasis added, footnotes omitted.)

62    Their Honours restated the correct approach at [82]:

Section 189(1) is valid in its operation upon persons who are within the Pochi limit where they are reasonably suspected of being unlawful non-citizens and no objective facts or law exist which are capable of being known to a reasonable officer at the time that officer holds that suspicion which would indicate to such an officer that those persons are within that limit.

(Emphasis added, footnote omitted.)

63    Importantly, their Honours emphasised (at [83]), in the application of this approach to the facts of Mr Thoms’ circumstances, that the “objective facts and the law at the time” (original emphasis) of detention were what governed whether a suspicion was reasonable. Before the High Court’s decision in Love, their Honours held, “it was not then recognised that Aboriginal Australians who satisfy the tripartite test in Mabo are within that [Pochi] limit”, referring to Pochi v Minister for Immigration and Ethnic Affairs [1982] HCA 60; 151 CLR 101. In other words, and especially where it is the application of the law to the facts which might transform a person from an unlawful non-citizen to a lawful non-citizen (or, to a non-alien), attention must be directed to the state of the law at the time and what an officer reasonably knew, or should have known.

64    Although the High Court did not refer to any authorities of this Court about reasonable suspicion, it also did not suggest any of them, and especially the Full Court in Okwume (by which I am bound), were incorrect. The applicant accepted that the description given by Besanko J at [134] in Okwume (with which White J agreed) was a correct statement of the approach. It is more detailed than the statements in Thoms 2022, but consistent with them.

I would put the correct analysis differently to how the primary judge put it, but perhaps the effect is the same. The starting point is whether the particular officer suspected that a person had a particular status (ie, was an unlawful non-citizen). If it is found that the particular officer did not have the suspicion, then that is the end of the inquiry and s 189 of the Act was not engaged. If he or she did have the suspicion, then the question is whether a reasonable person in the officer’s position would have entertained a suspicion that the person was an unlawful non-citizen. That will involve, in the first instance, an examination of the circumstances known to the person. If a reasonable person in the officer’s position would have desisted from forming the suspicion or awaited further information or made further inquiries before forming the relevant suspicion, then the actual officer’s suspicion is not reasonable in the circumstances. As I understand the phrase “reasonably capable of being known” as used in Ruddock v Taylor, it includes inquiries a reasonable person in the position of the officer would make before forming the relevant suspicion. The meaning of suspicion is as articulated in George v Rockett (see above at [92]).

65    In Okwume at [213]-[221], I disagreed with the majority’s conclusion that the detaining officer’s suspicion was not reasonable, (as the primary judge had also found). At [214] I gave this explanation:

Further, as the Commonwealth submitted, the primary judge’s shift in language to asking what an officer “ought reasonably to have known” about “conditions for the exercise of the power” finds no support in the authorities on s 189, principally Taylor and Goldie. The plurality identified the correct question in Taylor at [27] as whether the suspicion, if subjectively held, is reasonably based. There is nothing in Taylor suggesting the Court necessarily intended the question of whether a suspicion was reasonably based to include an inquiry about the level of understanding an officer should have concerning the legal requirements of natural justice, as developed in the authorities. The result in Taylor suggests the opposite, although I accept that the facts in that case involved a cancellation by someone other than the detaining officer.

66    Besanko J found (and White J agreed) (at [136]-[137]):

The Commonwealth submitted that her Honour’s approach was erroneous because it attributed to the reasonable officer in the position of Mr Andersson (which included his position as the decision-maker with respect to Mr Okwume’s visa) a level of knowledge of what the Commonwealth described as “sophisticated” requirements in administrative law.

I reject this submission. I agree with the primary judge that there is no bar to attributing the reasonable officer with certain knowledge of the law as well as of fact. I have little difficulty with the proposition that the reasonable officer exercising a power (in this case, the power to cancel a visa) would know of the statutory conditions attending the exercise of the power, including in a case such as the present, ss 119 and 120. The more contentious question is whether the reasonable officer would know that s 119(1)(a) had not been complied with or may well have not been complied with. I think a reasonable officer would know that s 119 was a natural justice or procedural fairness provision designed to give the visa holder a meaningful opportunity to say, among other things, why the document in issue is not bogus. He cannot do that if all he is told is that the document is bogus, and I think a reasonable officer in Mr Andersson’s position would appreciate that. It follows that if the reasonable officer in Mr Andersson’s position would know that the cancellation decision was, or may well be legally infirm, then the suspicion formed under s 189 of the Act cannot be characterised as reasonable.

67    Those findings were confined to the particular circumstances in Okwume, which reflects the established position, repeated in Thoms 2022, that consideration of what a detaining officer ought reasonably to know, will be highly fact-specific.

68    A less contentious example of the position advanced by Besanko J would be, in my respectful opinion, where an officer at an airport is given a policy manual about how to exercise a cancellation or refusal power, and that policy manual advises the officer about how to afford natural justice, and the officer fails or neglects to follow those instructions. That might be a situation where it would not be objectively reasonable, after such a failure, for the officer to suspect the relevant person’s visa had been lawfully cancelled or refused, being ultimately a legal question.

69    In Okwume the detaining officer was also the person who cancelled Mr Okwume’s visa and the failure to afford natural justice attached to the cancellation decision itself. This was a critical fact in my respectful opinion. The circumstances for the applicant here are quite different. Nevertheless, if the correct position on the authorities is that a detaining officer can be fixed with a level of knowledge about the law applying to their exercise(s) of power), it is my view that it would not have been objectively reasonable for Ms Hussain to suspect that the applicant’s visa had been unlawfully cancelled, because of the Makasa argument. Or to put it in the negative – it was not objectively unreasonable for Ms Hussain to proceed on the basis that there had been a valid cancellation of the applicant’s visa.

70    That is because:

(a)    there is no debate that the records checked by Ms Hussain were up to date and accurate (cf Goldie);

(b)    there is no debate that those records disclosed the applicant’s visa had been cancelled;

(c)    Ms Hussain was informed by “Anthony”, a legal officer with the Department, that “Mr Kamal was arguing in the Federal Court that the cancellation of his visa was invalid and so he should be released from detention”. The provision of that information was anodyne, and would not, objectively, have put an officer in Ms Hussain’s position on notice that there might be something so wrong with the visa cancellation that she could not rely on it to form her opinion that the applicant was an unlawful non-citizen;

(d)    I infer that information of that kind would be available and more likely than not passed on to detaining officers, about every person who has a proceeding in this Court or the Federal Circuit and Family Court of Australia, or indeed the Administrative Appeals Tribunal, because the conveying of that information is material to whether a person is presently exposed to removal under s 198 of the Migration Act, or not;

(e)    the mere statement that a detainee is challenging a visa cancellation (or refusal) would not put a reasonable officer on notice that they should make further inquiries, or that there was a justification not to rely on the visa cancellation as recorded in departmental records. I consider the facts in Okwume make that case distinguishable, because the detaining officer was the person who had exercised the cancellation power, without affording procedural fairness to Mr Okwume. Okwume also concerned the initial apprehension and detention of Mr Okwume;

(f)    it is no part of the functions or responsibilities of detaining officers to engage in speculation about the strength of legal arguments made by detainees, and there is nothing in the text, context or purpose of s 189 and its surrounding provisions which suggests otherwise;

(g)    assuming, as I have, that in some circumstances a detaining officer may, in order to act reasonably, have to form a view about a legal matter affecting the validity of a previous exercise of power to cancel or refuse a visa, in my opinion those circumstances will be rare. What will be required is a level of obviousness about the current state of the law and its application to the facts known, or constructively known, to the detaining officer. That is the point made in Thoms 2022 about the difference between the basis for a reasonable suspicion about someone like Mr Thoms before, as compared to after, the High Court’s decision in Love; and

(h)    as I explain below, the applicant’s Makasa argument does not involve a contention about the present state of the law. It involves a proposed extension to the current law. Therefore, the arguments about Ms Hussain’s state of mind require her to have speculated, and speculated in the ‘correct’ way, about how a Court might extend the Makasa principles to the circumstances facing the applicant.

71    There was no real challenge to the evidence of Ms Power, as an officer previously responsible for the detention of the applicant. I infer that is because she ceased in this role prior to the applicant commencing this proceeding, and it was asserted knowledge of the argument in this proceeding which provided the basis for the applicant’s habeas corpus contentions.

72    In the applicant’s post-hearing reply submissions, which I consider went beyond the leave granted and took advantage of the limits placed on the Minister’s entitlement to file responsive submissions, the applicant’s counsel contend (at [3(b)]):

As is said in Goldie, Guo and Hobson, turning away from a known conflict is not what a reasonable officer does, especially when a person’s liberty depends on that officer’s state of mind.

73    That is an inaccurate summary of the conclusions reached in those three cases, and is also not consistent with Thoms 2022. It does not advance the applicant’s arguments any further. The Minister has, in the circumstances of this case, proven that Ms Hussain’s suspicion was reasonably held at all times she was responsible for the detention of the applicant.

74    I also consider that the Minister is correct to submit that the Makasa argument does not in any event apply to the applicant’s circumstances. This line of authority concerns the ‘character test’ in the various cancellation powers, and its application in circumstances of a second visa cancellation, when a first visa cancellation has either been set aside, or revoked on merits review.

75    Makasa concerned the power in s 501(2) of the Migration Act. Mr Makasa had his visa cancelled in 2011 under s 501(2), and the basis for the delegate’s suspicion that he did not pass the character test was because of a conviction and two year sentence for various offences in 2009. The Tribunal set that cancellation aside and substituted a decision that his visa should not be cancelled. Thereafter, Mr Makasa remained in the Australian community as a lawful non-citizen until 2017. In 2017, Mr Makasa was convicted and sentenced in respect of further offences. His visa was cancelled again, this time in an exercise of personal power by the Minister, but still under s 501(2). Those later offences were not, however, the basis relied on in the second cancellation for a finding that Mr Makasa did not pass character test; rather, the Minister relied again on the 2009 conviction.

76    The Court held the second cancellation was invalid. The Minister could not exercise again the cancellation power in s 501(2) based on the same offending relied on in the first cancellation, where that first cancellation was set aside and the individual’s visa had been restored. The s 501(2) power was not available; it was spent. The Court found the scheme of the Migration Act exhibited a contrary intention so that the terms of s 33(1) of the AIA were inapplicable.

77    The plurality described the exercise of the power to cancel or not cancel in s 501(2) as having an “end point” (at [42]), and therefore a subsequent decision to cancel must be characterised as a “re-exercise” of the power: at [43]. The power could only be re-exercised, their Honours held, if the prescription in s 33(1) of the AIA (that a statutory power “may be exercised … from time to time as occasion requires”) applied to s 501(2). In turn, this required that there be no contrary intention evinced by the legislative scheme: see at [44], by reference to AIA s 2.

78    The Court found a contrary intention for several reasons. First (at [50]):

an intention not to allow further re-exercise of a power by a primary decision-maker after re-exercise of that power by the AAT under s 43(1)(b) or (c)(i) of the AAT Act on review of an earlier exercise of power by the primary decision-maker is inherent in the nature of the merits review function for which it is the design of s 43 of the AAT Act to make provision. … The function of the AAT, in other words, is “to do over again” that which was done by the primary decision-maker. The function would be reduced to a mockery were the subject matter of the decision made by the AAT on review able to be revisited by the primary decision-maker in the unqualified re-exercise of the same statutory power already re-exercised by the AAT in the conduct of the review.

(Citations omitted.)

79    Second, the existence of Ministerial “override” powers (at [53]):

As powers of ministerial override, each of the specific powers conferred on the Minister by s 501A(2) and s 501A(3) can be exercised by the Minister without need for any change to the factual basis on which the delegate or the AAT formed a reasonable suspicion that the visa holder did not pass the character test in making the decision not to cancel a visa.

80    The conditions on these override powers (national interest criteria and personal exercise) were sufficient to characterise it as a “special” power, in contrast to s 501(2), which could be characterised as a “general” power. The latter could not be exercised to do that which is the subject of the former, the Court held at [54], citing Leon Fink Holdings Pty Ltd v Australian Film Commission [1979] HCA 26; 141 CLR 672 at 678, referring to Anthony Hordern & Sons Ltd v Amalgamated Clothing and Allied Trades Union of Australia [1932] HCA 9; 47 CLR 1 at 7.

81    The Court found (at [55]-[56]) the presence and nature of the override powers in the scheme manifested:

a legislative intention to exclude re-exercise by the Minister or a delegate of the more general power conferred by s 501(2) of the Act, read in light of s 33(1) of the AI Act, to revisit and reverse a previous decision of a delegate not to cancel a visa made in the exercise of the power conferred by s 501(2) where there has been no change to the factual basis on which the previous decision-maker be it the Minister or a delegate or the AAT, formed a reasonable suspicion that the visa holder did not pass the character test in making the previous decision not to cancel a visa.

…

The result, in short, is that a decision of a delegate or the AAT not to cancel a visa made in the exercise of the power conferred by s 501(2) of the Act on the basis of facts giving rise to a reasonable suspicion that a visa holder does not pass the character test is final, subject only to ministerial override in the exercise of the specific power conferred by s 501A.

82    The Court recognised (at [57]) that the s 501(2) power could be re-exercised on “a different factual basis” in respect of whether a person is reasonably suspected to pass the character test. In reaching this conclusion, the High Court found the Full Court’s decision in Parker v Minister for Immigration and Border Protection [2016] FCAFC 185; 247 FCR 500 to have been wrongly decided: see at [59].

83    The principles in Makasa were then raised before a Full Court of this Court in XJLR, but in relation to the mandatory cancellation power in s 501(3A). Again, it should be emphasised that it is the ‘character test’ criterion to which these arguments are directed. Can the same offences be used as the basis for forming a reasonable suspicion that a person does not pass the character test as the offences used for a previous visa cancellation, where the Tribunal has on merits review restored a person’s visa and the Minister has not used the available override powers?

84    The Full Court held the same principles could be applied to the power in s 501(3A), although there was a division between Rares and Yates JJ on the one hand, and Snaden J on the other, about what flowed from this conclusion in terms of the validity of the subsequent decision-making about the applicant’s visa. That was important because it was actually the Tribunal’s refusal to revoke the visa cancellation that was subject to judicial review.

85    Thus, much of the debate and reasoning in the Full Court was about whether the revocation power in s 501CA depended on the existence of a jurisdictional fact – namely, a valid and effective cancellation decision. That issue is not presently relevant.

86    Yates J broadly agreed with Rares J. On the Makasa issue, Snaden J also agreed with Rares J. Thus, there are three judges who found Makasa applicable to s 501(3A).

87    At [71]-[78], Rares J reasoned:

(a)    there is a corresponding override power in respect of a revocation of a cancellation made under s 501(3A);

(b)    section 501(3A) is a mandatory power, whereas s 501(2) is discretionary but both involve an application of the character test;

(c)    while the powers are different, and may be enlivened by different factual circumstances (at [72]):

That scheme respectively allows or requires the cancellation of a visa if particular facts exist (including the satisfaction of the decision-maker). It contemplates that, where the Minister did not make the decision personally, he or she can override it provided that the person has failed to satisfy the Minister that he or she passes the relevant character test and the cancellation is in the national interest.

(d)    the extracts from Makasa that I have quoted at [78] above were important;

(e)    Derrington J in Zyambo was wrong to see each limb of s 501(3A) as operating independently; and

(f)    at [77]-[78]:

Moreover, the Minister could always exercise his power under s 501BA(2) to override any decision of a delegate or the Tribunal under s 501CA(4) regardless of any change in the visa holder’s circumstances, including a new imprisonment. The Parliament intended that a decision to revoke a cancellation under s 501CA(4) could be overridden by the Minister under s 501BA(2). It follows that this specific power operates to exclude s 33(1) of the AI Act being available to re-enliven the duty under s 501(3A) where no new failure to pass the character test in s 501(3A)(a) has occurred, even if the person is serving a new sentence of imprisonment (Makasa 386 ALR at 210–211 [52]–[55]).

For these reasons, I am of opinion that the Migration Act evinces a contrary intention, within the meaning of s 2(2) of the AI Act, to prevent s 33(1) applying to the power in s 501(3A) merely because of a new imprisonment of the visa holder. It follows that, first, the 2018 cancellation was legally ineffective and, therefore, could not cause s 501CA to apply and, secondly, the 2018 non-revocation was also legally ineffective because the Tribunal was not validly exercising a power to review it under s 500(1)(ba).

(Original emphasis.)

88    The Full Court decision in PYDZ applied XJLR, although that was a consent position adopted by the parties. Nevertheless, the Full Court had to be positively satisfied that position was correct: see at [14], and the authorities there cited.

89    Thus, if the applicant had a first cancellation under s 501(3A), a revocation of that cancellation by the Tribunal and then a second cancellation under s 501(3A) based on the same conviction and sentence as the first one, on the authority of those two Full Court decisions, the second cancellation would be invalid. The question of what, objectively, a detaining officer could reasonably suspect about the applicant’s status in those circumstances would be perhaps a more difficult question. But that was not the factual narrative in the applicant’s circumstance.

90    The first visa cancellation in relation to the applicant is not relevant for this argument. The second cancellation, in 2009, was made under s 501(2). The 2008 sentence was the event which meant the applicant did not pass the character test. In July 2009, the second cancellation was revoked and the applicant’s visa restored. The Minister did not override the Tribunal’s decision. Then, on 11 December 2014, s 501(3A) of the Migration Act commenced; that is, some five years after the applicant’s visa had been restored. The 2008 sentence fell within the definition of “substantial criminal record” in s 501(7)(c). The third cancellation occurred in July 2016.

91    Where the applicant’s argument falls down is that what happened in July 2016 was not a “re-exercise” of the power in s 501(2). It was the exercise of a different statutory cancellation power, a new power, one that had been introduced well after the second cancellation decision. Section 33(1) of the AIA had no role to play. No question arose whether the s 501(2) power was spent. Yet that was the issue in both Makasa and XJLR/PYDZ.

92    The s 501(3A) power was obviously not spent. It had never been exercised in respect of the applicant. Indeed, it did not exist at the time the Tribunal revoked the cancellation and restored the applicant’s visa. The whole analysis in Makasa is inapplicable, as is the analysis in XJLR/PYDZ. Indeed, the applicant’s argument amounts to a proposition that the Tribunal’s restoration of his visa made him immune from any further cancellations relying on the 2008 sentence. That would require considerable exceptions to be implied into the statutory duty for which s 501(3A) provides. The applicant did not develop any construction argument about the terms of s 501(3A) which would support such implications.

93    Added to this is the authority of the Full Court in Chetcuti. Chetcuti concerned the cancellation power in s 501(3). It was decided after Makasa, but before PYDZ and XJLR. It was not cited in either of those cases. There was some uncertainty in the evidence in Chetcuti about which cancellation powers were relied upon on the two occasions Mr Chetcuti’s visa was cancelled. The Full Court held that Mr Chetcuti had not discharged his burden of proving that, on both occasions, it was the cancellation power in s 501(3) which was agreed to be the power supporting the cancellation: at [17]. At [22]-[23], the Full Court said:

Suffice it to say, as a matter of construction, s 501 of the Act does not confer but one visa cancellation power. It confers separate visa cancellation powers, the enabling criteria for the exercise of which overlap but which are not identical. It is not apparent that the exercise of one is intended to restrict the exercise of the other.

Contrary to a submission made for Mr Chetcuti, that position is reinforced, not contradicted, by s 501A of the Act. In relation to visa cancellation, the provision made by s 501A for the setting aside by the Minister, acting personally, of an earlier, non-adverse decision is expressly textually keyed to a decision by a delegate or the Tribunal, “not to exercise the power conferred by s 501(2) to cancel a visa that has been granted to a person”. All that s 501A has to say about s 501(3) is the self-evident position that the power conferred by that subsection is unaffected by the particular regime for which s 501A provides.

94    I proceed on the basis that I am bound by these passages, as they form part of the ratio of the Court’s decision to dismiss the second ground of appeal. In addition, I respectfully agree with their Honours. The reasoning in Makasa is wholly focused on the ability to re-exercise the very power which had already been exercised, relying on a specific conviction, previously relied upon, as the basis for a person not passing the character test. The Court explained why the legislative scheme disclosed a contrary intention against such re-exercise on the same factual basis, especially the presence of the override powers in the legislative scheme.

95    The applicant has failed to persuade the Court that where a separate, and indeed new, statutory cancellation power has been exercised, the legislative scheme should be read as precluding such an exercise of power, despite it not being a ‘re-exercise’ of the same power. While it might be accepted that in some general sense it seems unfair that the same conviction and sentence might be relied upon to cancel a visa the Tribunal restored, the applicant must go further than that, and identify how the statutory scheme should be construed to imply a restriction into the power in s 501(3A); for that must be the argument. As I have explained, the argument must be that the Makasa principles should be extended to supply an implied restriction on the second power, the power in s 501(3A). The applicant has failed to persuade the Court such an implication should be made.

96    The habeas corpus application must be dismissed.

Judicial Review

97    In the originating application, the applicant made two principal contentions of error by the Tribunal:

(a)    A failure to consider the material relating to the Australian citizen partner of the applicant, in the context of assessing the strength and nature of his ties to Australia; and

(b)    A failure by the Tribunal to ensure the applicant had a reasonable opportunity to both present his case and inspect documents to which the Tribunal proposed to have regard.

98    The contention at [97(a)] was not pressed on the hearing of the application.

99    The applicant submits that the Tribunal failed to carry out its statutory task in ensuring that the applicant had a reasonable opportunity to both present his case and to inspect documents to which the Tribunal proposed to have regard on the review.

100    Section 39(1) of the Administrative Appeals Tribunal Act 1975 (Cth) provides that the Tribunal must:

ensure that every party to a proceeding before the Tribunal is given a reasonable opportunity to present his or her case and, in particular, to inspect any documents to which the Tribunal proposes to have regard in reaching a decision in the proceeding and to make submissions in relation to those documents.

101    Counsel for the applicant submitted that s 39(1) contains three requirements: namely, that the applicant be given a reasonable opportunity to:

(a)    present his case;

(b)    inspect any documents to which the Tribunal proposed to have regard in reaching a decision in the proceeding; and

(c)    make submissions in relation to those documents.

102    The applicant submitted that the obligation to “ensure … a reasonable opportunity” elevates the obligation to one that is higher than that provided by the common law. Rather than being a “passive by-stander in the hearing as it progresses” (citing National Disability Insurance Agency v WRMF [2020] FCAFC 79; 276 FCR 415 at [65]), the Tribunal must “take reasonable steps to ascertain and satisfy [itself that it is meeting] the statutory threshold”: citing Young and Conway v Chief Executive Officer, Housing [2020] NTSC 59; 355 FLR 290 at [69], [76]-[80]; Varricchio v Wentzel [2016] SASC 86; 125 SASR 191 at [50]. The applicant also relied on the Full Court’s decision in Minister for Immigration and Multicultural and Indigenous Affairs v SCAR [2003] FCAFC 126; 128 FCR 553. There, by reference to s 425 of the Migration Act, which required the Tribunal to invite the applicant to appear and present arguments relating to the issues arising in relation to a decision under review, the Court held that the fulfilment of that obligation (at [33], [37]):

must not be a hollow shell or an empty gesture: Mazhar v Minister for Immigration and Multicultural Affairs (2000) 183 ALR 188 at [31].

…

… s 425 of the Act imposes an objective requirement on the Tribunal. The statutory obligation upon the Tribunal to provide a ‘real and meaningful’ invitation exists whether or not the Tribunal is aware of the actual circumstances which would defeat that obligation. Circumstances where it has been held that the obligations imposed by s 425 of the Act have been breached include circumstances where an invitation was given but the applicant was unable to attend because of ill health: Applicant NAHF of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 140. They also include circumstances where the statements made by the Tribunal prior to the hearing have misled the applicant as to the issues likely to arise before the Tribunal: VBAB of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 804. They also include circumstances where the fact or event resulting in unfairness was not realised by the Tribunal. For example, circumstances such as where the applicant was invited to attend and did attend before the Tribunal, but was effectively precluded from taking part because he could not speak English and a translator was not provided or was inadequate: Tobasi v Minister for Immigration and Multicultural Affairs [2002] FCA 1050; W284 v Minister for Immigration and Multicultural Affairs [2001] FCA 1788.

103    The applicant also relied on SZQRU v Minister for Immigration and Citizenship [2012] FCA 1234 as more recent consideration of this point. At [19], by reference to s 425 of the Migration Act, the Court held that:

there may well be circumstances in which the opportunity is lost though the applicant is present in person, for example where the applicant is genuinely distracted by intractable pain or heavily sedated or confused so that he or she is not in a fit state to give evidence or present arguments.

104    The applicant identified three reasons, or “external misfortunes”, in addition to the fact he was unrepresented:

(a)    The applicant was, at the time of the Tribunal hearing and when each of his submissions were due, enduring a lockdown in prison during the early part of the COVID-19 state of emergency. The applicant highlighted these limitations to the Tribunal. These conditions had significant repercussions for his well-being and mental health, which must be understood against the applicant’s documented history of significant mental illness.

(b)    The applicant could not read at the level required to meaningfully “inspect” and “make submissions” on documents, especially when those documents were voluminous, new and were first provided to him during the hearing. The applicant also contended that the Minister had failed to comply with the Tribunal’s directions relating to the provision of documents throughout the Tribunal process. Regarding the applicant’s reading literacy and comprehension, the applicant relied particularly on his October affidavit (at [4]):

I’m not good at reading or writing. I only went to school from the age of 9 to 14 years old. I struggle to understand legal documents, even when I can read the words.

The applicant also pointed to similar statements having been made to the Tribunal, as recorded on the Tribunal transcript.

(c)    The applicant sought to adjourn the hearing twice, absent which his ability to fully prepare for the Tribunal process was prejudiced.

105    The main contentions made by the Minister were practical ones:

(a)    the Tribunal transcript demonstrates that the applicant “participated meaningfully in the hearing and gave relevant evidence”;

(b)    the Tribunal was aware that there was a “lockdown” in effect at the time of the hearing, the applicant was unrepresented and had not inspected certain documents prior to the hearing, and the applicant had requested adjournments; and

(c)    the applicant’s adjournment requests must be understood in the statutory context of s 500(6L) of the Migration Act, by which certain decisions on review in the Tribunal are taken to have been to be affirmed if the Tribunal has not made a decision within the period of 84 days of notification of the decision under review in accordance with s 501G(1).

My conclusions on the judicial review

106    The Minister contended that the applicant’s characterisation of the obligation in s 39(1) “may be doubted”. The Minister did not expand on this contention, though cited WRMF at [64]; Jagroop v Minister for Immigration and Border Protection [2014] FCAFC 123; 225 FCR 482 at [32]; Daw v Minister for Immigration and Citizenship [2012] FCA 705 at [3]; Sullivan v Department of Transport (1978) 20 ALR 323 at 343. I accept this submission, it is consistent with the authorities cited. For example, in Jagroop, the Full Court at [32] said of s 39(1):

Section 39(1) of the AAT Act provides:

(1)    Subject to sections 35, 36 and 36B, the Tribunal shall ensure that every party to a proceeding before the Tribunal is given a reasonable opportunity to present his or her case and, in particular, to inspect any documents to which the Tribunal proposes to have regard in reaching a decision in the proceeding and to make submissions in relation to those documents.

The obligation imposed by s 39(1) that the Tribunal give every party “a reasonable opportunity to present his or her case” has been described as a “statutory recognition of an obligation the common law would in any event imply”: Sullivan v Department of Transport (1978) 20 ALR 323 at 342 per Deane J; De Simone v Federal Commissioner of Taxation [2009] FCAFC 181; (2009) 77 ATR 936 at [15] per Sundberg, Stone and Edmonds JJ. In Sullivan at 343, Deane J said that:

… the relevant duty of the Tribunal is to ensure that a party is given a reasonable opportunity to present his case. Neither the Act nor the common law imposes upon the Tribunal the impossible task of ensuring that a party takes the best advantage of the opportunity to which he is entitled.

(Original emphasis.)

107    What is, and is not, a “reasonable opportunity” will of course be highly fact-dependent. It can be accepted that the Tribunal’s discharge of its obligation may well require it in certain circumstances to be proactive, to be flexible and to actively consider the circumstances of a review applicant. All such matters inhere in the concept of what is a “reasonable” opportunity in a specific situation. None require a gloss on the s 39(1) obligation itself.

108    I also agree with the Minister that the content of the Tribunal’s procedural fairness obligations must be seen in the statutory context of s 500(6L) of the Migration Act. This provision, and s 39(1), although contained in two different pieces of legislation, form part of the same overall legislative scheme concerning the conduct of reviews of decisions under the Migration Act by the Tribunal and must be construed as far as practicable to operate harmoniously: Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; 194 CLR 355 at [70]. An alternative way to see the relationship is to say that the content of a “reasonable opportunity” in s 39(1) must be construed in light of the terms of s 500(6L). Similarly, the Tribunal must understand the need to discharge its obligations under s 39(1) in a manner compatible with s 500(6L).

109    The question is whether the process adopted by the Tribunal involved unfairness to the applicant of a nature or quality which meant that he did not have the reasonable opportunity to be heard, and to present arguments and advance his case on merits review, in the way contemplated by s 39(1), read in the context of other provisions including s 500(6L): see, generally, Nathanson v Minister for Home Affairs [2022] HCA 26; 403 ALR 398; Minister for Immigration and Border Protection v WZARH [2015] HCA 40; 256 CLR 326; SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; 228 CLR 152; Re Minister for Immigration and Multicultural Affairs and Indigenous Affairs; Ex parte Lam [2003] HCA 6; 214 CLR 1.

110    In his October affidavit at [9]-[19], the applicant gives the following evidence:

Even before the pandemic restrictions in prison started, on 26 February 2020, with the help of another prisoner, I asked the AAT for 60 days to file materials in support of my case. I wanted to find a lawyer to help me and I was struggling to understand what I needed to do in the Tribunal process.

I do not recall receiv[i]ng a response to my request for an extension of time.

On 5 March 2020, with the assistance of another prisoner, I wrote a letter to the Registrar of the AA T seeking an extension of time to file material in support of my application and the adjournment of the matter because the Office of Public Prosecutions and the Department of Justice and Community Safety had failed to produce documents under subpoena.

I did not receive a response to my request for adjournment either.

Around 19 March 2020, a letter from me written with the assistance of another prisoner complained about the Minister not giving me documents.

I did not receive a response to that letter either.

During the Tribunal process, I was not provided with documents sent to me at prison and the prison processes that J had to rely on were not reliable, especially because of the then-new Covid restrictions.

The night before the Tribunal hearing I could not sleep.

I attended the AAT application hearing online from Loddon Prison. We were under Covid-19 lockdown restrictions at the time, but I was not locked down in my cell.

I felt very anxious during the hearing. No one was there to represent or support me in the hearing. I had trouble concentrating and making sense of everything that was going on.

I complained to the Tribunal that I had not received documents that were required to be given to me. Those documents were then given to me by Loddon Prison officers during the hearing in a box of papers. I could not read them in the time and I could not understand then without getting a lot of help.

111    He expands in other parts of his affidavit about the conditions at Loddon Prison, and the better conditions in immigration detention once he was transferred to the MITA.

112    I do not accept the applicant’s affidavit evidence entirely at face value; not because I consider he is being untruthful, but rather because he gives that evidence from a position of hindsight, being understandably disappointed and unhappy with the outcome of the Tribunal’s decision. In my opinion he also gives that evidence being understandably dissatisfied with having to conduct his own merits review while in prison, and without a lawyer. I find his complaint, at base, is that he had to conduct his own merits review without a lawyer and from prison. No doubt those are factors the Tribunal needs to be highly conscious of during its conduct of the review, including the review hearing. Those facts may place a person at a disadvantage, but it is not a disadvantage that the Tribunals’ performance of its obligation in s 39(1) can completely remedy. The Tribunal can ameliorate that structural disadvantage but it cannot remove it.

113    At [45]-[46], the Minister submits:

A consideration of the Tribunal transcript shows that the applicant participated meaningfully in the hearing and gave relevant evidence. His written material was otherwise lucid and comprehensive [CB 1180-1228, 1237-1242]. The Tribunal allowed for post-hearing submissions specifically to accommodate the applicant’s late reception of the supplementary G documents (T11.18-14.15, 65.13-67.11). Further, the Tribunal was aware of the applicant’s history of anxiety and depression [CB 1278 [52]], although it could not conclude on the information before it that a mental health condition still existed for the applicant (but it proceeded on the basis that it might) [CB 1292 [116]].

Here, the Tribunal was aware that: there was at the time of the hearing a “lockdown” in effect [CB 1267 [3]]; the applicant’s was unrepresented and had not inspected the supplementary G documents before the hearing (see [45] above, including in relation to the steps taken to remedy that matter); and the applicant had requested adjournments [CB 1254, 1257] (cf. AWS [40]). The refusal of the applicant’s adjournment requests (including one for 60 days) must be understood in the statutory context of s 500(6L) and the 84-day rule [CB 12].

(Emphasis omitted, footnotes omitted.)

114    I accept those submissions. My impression from reading the transcript of the Tribunal hearing, and the material submitted by the applicant, is that he put his case for revocation as clearly and fully as it could have been put. The Tribunal’s reasons disclose that it was the applicant’s own evidence, and attitude displayed during the hearing to the questions asked of him, together with the Tribunal’s objective assessment of all the material before it in terms of the “chance[s]” given to the applicant in the past and what he done with those “chance[s]”, which ultimately swung the review against the applicant. The basis for the Tribunal’s decision had nothing to do with any perceived inadequacies in the way the applicant present his case on review. There was no practical injustice.

115    I accept it was a very stressful and anxious time for the applicant; his future migration status in Australia was at stake. Any person in his position would experiences the kind of emotions he describes, and would feel less able to make a ‘good’ case without a lawyer. Objectively, however, the applicant presented a detailed and careful case for why his visa cancellation should be revoked.

116    The Tribunal was conscious of all the applicant’s disadvantages, and accommodated the pre-hearing failures by the Minister and the Prison. As I noted during oral argument, the way the ‘G’ documents were purported to be provided to the applicant was highly unsatisfactory and should not be repeated. Before any hearing, the Minister should take all reasonable steps to ensure documents reach an imprisoned individual, not just that they reach the prison. The prison authorities should ensure that a person’s capacity to participate in a hearing, and exercise their rights to do so that the law affords them, are not compromised by bureaucratic processes within the prison. No doubt the COVID-19 situation had imposed additional burdens on prison authorities. However, the evidence shows a lack of real engagement by the Minister’s legal representative, and by the prison authorities, with the applicant’s undoubted entitlement to participate meaningfully in his merits review.

117    In this case, however, the Tribunal accommodated those failures with its directions about post-hearing submissions. It conducted the hearing in a careful and fair way. The applicant made meaningful post-hearing submissions.

118    Some specific factual matters have influenced my reasoning on the s 39(1) ground. First, the Tribunal review hearing was held on 1 April 2020, which was a Wednesday, not a Friday as the applicant’s counsel had submitted. The Tribunal then gave the applicant to 5.00 pm on the following Monday to file post-hearing submissions. That is a tight timetable, but I accept the Minister’s submission that the 84 day rule meant the Tribunal had to compress the timing somewhat.

119    The transcript from the review hearing reads as follows:

MR KAMAL: I’ve got a couple of things here but it would be good if I could prepare, like, because of what I received this today.

SENIOR MEMBER MORRIS: All right.

MR KAMAL: All these files, I haven’t had any chance to even - to do anything with it. I’ve got this, it’s a massive paper that I can’t even read that properly but I’ll need someone to help me with it. And from what I remember from today and I if could go back and put a few things together and if I could get an email to you again?

SENIOR MEMBER MORRIS: Yes, Mr Orchard, I think what we’ll do is in the circumstances given that the applicant didn’t get the supplementary G documents until we’d commenced, that the tribunal will give leave to both parties to give written closing submissions.

MR ORCHARD: Yes, Senior Member, yes.

SENIOR MEMBER MORRIS: What I did say, Mr Kamal, I was going to give you until - or we were going to give you until 5 o’clock on Monday.

MR KAMAL: Yes.

SENIOR MEMBER MORRIS: Do you think that will be sufficient time for you?

MR KAMAL: Yes, no worries. Yes, that will be good.

SENIOR MEMBER MORRIS: All right. If you provide those to the tribunal and to Mr Orchard or if you don’t, we’ll provide it to him - - -

MR KAMAL: Yes.

SENIOR MEMBER MORRIS: - - - by 5 pm on Monday, 6 April.

MR KAMAL: Yes.

SENIOR MEMBER MORRIS: Mr Orchard, for you, in terms of responding to the closing submissions I was going to say by 5 pm on Thursday, 9 April. Is that sufficient time for you?

MR ORCHARD: That’s sufficient time, Senior Member. I’m also happy to produce a closing submission orally as well but I’m in the tribunal’s hands.

SENIOR MEMBER MORRIS: Yes, I think we think that it would be better in the circumstances to do it in writing.

MR KAMAL: Yes.

SENIOR MEMBER MORRIS: Because it allows Mr Kamal the opportunity to read the other documents which you’ve taken him to a lot of them but it would be fair for him to be able to read what you’ve had the opportunity to read and the tribunal has too.

MR ORCHARD: Yes.

SENIOR MEMBER MORRIS: Just in terms of being fair. So what we’ll do is we’ll conclude the hearing pending written submissions and we’ll send out a direction this afternoon. Mr Kamal, that will just say what we’ve already said, so you know you’ve got until 5 pm on Monday and Mr Orchard has got by 5 pm on the following Thursday. When Mr Orchard sends those to the tribunal he will send a copy to you as well.

MR KAMAL: No worries, thank you, Mr Senior Member.

SENIOR MEMBER MORRIS: So everyone knows what everyone is sending.

MR KAMAL: Yes.

SENIOR MEMBER MORRIS: So the hearing is concluded subject to written submissions from both parties.

MR KAMAL: Okay. So I’ll get it started and I’ll send it Monday. Do I get anything from here today or do I just send it?

SENIOR MEMBER MORRIS: You send it in whatever form you like in writing.

MR KAMAL: Yes.

SENIOR MEMBER MORRIS: Like you did your opening submissions.

MR KAMAL: Yes, yes.

40 SENIOR MEMBER MORRIS: If you don’t also send it to Mr Orchard, the tribunal will make sure that he gets it.

MR KAMAL: Yes.

SENIOR MEMBER MORRIS: I mean, you can do it before that time but that’s the deadline, 5 pm Monday.

MR KAMAL: Monday, no worries. Thank you. Thanks heaps, Mr Senior Member, that’s very helpful too.

SENIOR MEMBER MORRIS: All right.

MR KAMAL: Thank you.

SENIOR MEMBER MORRIS: Thank you, Mr Orchard. This hearing is adjourned.

MR ORCHARD: Thank you.

120    The applicant’s counsel contended the Court could not take what the applicant says to the Tribunal at face value. I disagree. The applicant had been clear to the Tribunal, when he saw it necessary, about unfairness he suffered or the difficulties of his position. He spoke up. I do not consider the transcript discloses that he was “railroaded”. He was attempting to be co-operative with the Tribunal, no doubt because he saw it was in his interest to do so, as it likely was. But in my opinion if he had genuinely thought he could not comply with the Monday deadline, the applicant would have said so.

121    The applicant’s submissions were filed in compliance with the Tribunal’s directions. He had already filed detailed, comprehensive, and very polished written submissions ahead of the Tribunal hearing. I accept he had the assistance of another prisoner in preparing them; all I can say is that the person assisting the applicant provided him with high quality assistance. They were of a comparable standard to those a lawyer might produce.

122    The same is true of the post-hearing submissions. They comprise 46 paragraphs, which are also logically ordered, persuasively advanced and comprehensive.

123    I accept it appears that the applicant did not personally receive the Minister’s post-hearing submissions by 9 April, and that is what prompted a communication to the Tribunal.

124    The Minister accepts that the applicant’s communication to the Tribunal is capable:

of establishing that, as at 15 April 2020 (the document is incorrectly dated “15 April 2019”), the applicant had not been provided with a copy of the Minister’s submissions of 9 April 2020.

125    I accept that is the correct inference to draw from the evidence. It is consistent with what occurred with the ‘G’ documents. It reflects the same unsatisfactory process by both the Minister and the Prison authorities. Documents reaching the Prison itself by a due date is meaningless, unless they actually reach the person affected by that date. Especially so when, as here, responses are time critical.

126    In his reply submissions, and somewhat ironically given this case is about procedural fairness, the applicant relied on this communication to make what appears to be a new argument, or at least a substantial refinement, on how the denial of procedural fairness was put at the hearing in this Court. That argument is not persuasive either.

127    Despite the failures of the Minister and the Prison authorities to get the Minister’s post-hearing submissions to the applicant in a timely way, the applicant provided the Tribunal with another set of comprehensive and polished submissions. The Tribunal again accommodated the applicant’s circumstances as described to it: it made further directions on 15 April 2020, allowing the applicant a further opportunity to provide final submissions in reply by 17 April 2020. I agree with the Minister that the correct inference is that these directions were made responsively to the applicant’s communication on 15 April 2020. The applicant made no further submissions in the face of that third opportunity to do so after the hearing. It is difficult to see what more could have been said on his behalf, in any event.

128    All that could be said on behalf of the applicant to the Tribunal was said, and said well. In my opinion the accommodation given by the Tribunal during and after the review hearing was sufficient to comply with its obligations under s 39(1).

Extension of time

129    As I informed the parties during the hearing, my approach to applications for extensions of time in these kinds of circumstances is that the deciding factor is the merits of the substantive judicial review arguments: see, for example, AIO21 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1105 at [24]; AIC16 v Minister for Immigration and Border Protection [2018] FCA 1178 at [14]-[17]; MZABP v Minister for Immigration and Border Protection [2015] FCA 1391; 242 FCR 585 at [62]-[63].

130    In the present case, the procedural fairness contention was certainly arguable. Further, I accept the applicant’s evidence, and submissions of junior counsel Ms Tadros, that the applicant was genuinely trying to obtain legal representation, but had indicated he could not do so in his current circumstances. I accept that once he was placed in immigration detention, he had improved access that enabled him to find lawyers prepared to act for him pro bono.

131    In the circumstances, I consider it is appropriate to grant an extension of time to the applicant to commence the judicial review proceeding.

Conclusion

132    The application for habeas corpus is refused. An extension of time will be granted but the application for judicial review will be dismissed. The legal representatives for the applicant have acted without fee, in accordance with longstanding traditions of the Victorian legal profession in assisting those litigants who cannot afford legal representation. The Court is grateful to them.

133    There is nothing in this proceeding distinguishing it from other proceedings where the ‘usual rule’ as to costs is applied. Unless and until the law is changed about these ‘usual’ costs orders, the Court must apply the law as it is. The parties will be given an opportunity to agree on an appropriate lump sum for the Minister’s costs. Failing that, the question of an appropriate lump sum will be referred to a Registrar for determination.

Associate:

Dated:    10 March 2023