Commonwealth v Okwume
[2018] FCAFC 69
•4 May 2018
FEDERAL COURT OF AUSTRALIA
Commonwealth of Australia v Okwume [2018] FCAFC 69
Appeal from: Okwume v Commonwealth of Australia [2016] FCA 1252 File numbers: SAD 315 of 2016
SAD 317 of 2016Judges: BESANKO, MORTIMER AND WHITE JJ Date of judgment: 4 May 2018 Catchwords: MIGRATION – appeals from orders made by a judge in connection with detention under the Migration Act 1958 (Cth) – where claim for unlawful detention or false imprisonment – where claim for damages and other compensation in relation to detention
MIGRATION – whether the relevant visa was validly cancelled – whether there were jurisdictional errors committed in connection with the decision to cancel the visa – whether there was a failure to comply with s 119(1)(a) of the Migration Act – whether there was a failure to bring an independent mind to bear on the decision to cancel the visa
MIGRATION – whether detention under s 189 of the Migration Act was lawful – whether the primary judge erred in holding that there was no reasonable suspicion for the purposes of s 189 of the Migration Act – whether the primary judge erred in concluding that an officer was empowered under s 189 of the Migration Act to detain a person without making an independent inquiry as to the relevant facts and circumstances regarding the holding of a (cancelled) visa – interpretation of ss 189 and 196 of the Migration Act – whether unlawful detention was established
DAMAGES – whether damages should be awarded for unlawful detention – whether claim for damages ought to be remitted to the primary judge for assessment on the basis of false imprisonment – whether the amount of damages awarded by the primary judge in relation to unlawful detention was manifestly inadequate
PRACTICE AND PROCEDURE – whether primary judge’s orders ought to be set aside – whether appeals ought to be dismissed with costs
Legislation: Customs Act 1901 (Cth)
Migration Act 1958 (Cth) ss 5, 13, 14, 15, 97, 103, 116, 119, 120, 166, 172, 189, 190, 191, 192, 196, 496
Cases cited: AAM15 v Minister for Immigration and Border Protection [2015] FCA 804; (2015) 231 FCR 452
Al-Kateb v Godwin [2004] HCA 37; (2004) 219 CLR 562
Anderson; Ex parte Ipec-Air Pty Ltd [1965] HCA 27; (1965) 113 CLR 177
ASP15 v Commonwealth of Australia [2016] FCAFC 145; (2016) 248 FCR 372
Behrooz v Secretary, Department of Immigration and Multicultural and Indigenous Affairs [2004] HCA 36; (2004) 219 CLR 486
Commonwealth v Fernando [2012] FCAFC 18; (2012) 200 FCR 1
CPCF v Minister for Immigration and Border Protection [2015] HCA 1; (2015) 255 CLR 514
Coulton v Holcombe [1986] HCA 33; (1986) 162 CLR 1
Falzon v Minister for Immigration and Border Protection [2018] HCA 2; (2018) 351 ALR 61
Fernando v Commonwealth [2014] FCAFC 181; (2014) 231 FCR 251
George v Rockett [1990] HCA 26; (1990) 170 CLR 104
Goldie v Commonwealth of Australia [2002] FCAFC 100; (2002) 117 FCR 566
Green v Sommerville [1979] HCA 60; (1979) 141 CLR 594
Lansen v Minister for Environment and Heritage [2008] FCAFC 189; (2008) 174 FCR 14
Minister for Immigration & Multicultural & Indigenous Affairs v VFAD of 2002 [2002] FCAFC 390; (2002) 125 FCR 249
Minister for Immigration and Border Protection v WZARH [2015] HCA 40; (2015) 256 CLR 326
Minister for Immigration and Citizenship v Brar [2012] FCAFC 30; (2012) 201 FCR 240
Minister for Immigration & Multicultural Affairs v Bhardwaj [2002] HCA 11; (2002) 209 CLR 597
NAMU of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 401; (2002) 124 FCR 589
Nashua Australia Pty Ltd v Channon (1981) 58 FLR 325
O’Brien and Others v Komesaroff [1982] HCA 33; (1982) 150 CLR 310
Ousley v The Queen [1997] HCA 49; (1997) 192 CLR 69
Plaintiff M47/2012 v Director-General of Security [2012] HCA 46; (2012) 251 CLR 1
Plaintiff M76/2013 v Minister for Immigration, Multicultural Affairs and Citizenship [2013] HCA 53; 251 CLR 322
Plaintiff M96A/2016 v Commonwealth of Australia [2017] HCA 16; 343 ALR 362
Re Woolley; Ex parte Applicants M276/2003 [2004] HCA 49; (2004) 225 CLR 1
Ruddock v Taylor [2005] HCA 48; (2005) 222 CLR 612
Sadiqi v Commonwealth (No 2) [2009] FCA 1117; (2009) 181 FCR 1
Stead v State Government InsuranceCommission [1986] HCA 54; (1986) 161 CLR 141
Suttor v Gundowda Pty Ltd [1950] HCA 35; (1950) 81 CLR 418
Tien v Minister for Immigration & Multicultural Affairs [1998] FCA 1552; (1998) 89 FCR 80
Tocoan Pty Ltd v Commissioner of Police [2013] WASC 318
Trobridge v Hardy [1955] HCA 68; (1955) 94 CLR 147
WAIS v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1625
Watson v Marshall and Cade [1971] HCA 33; (1971) 124 CLR 621
Zhao v Minister for Immigration & Multicultural Affairs [2000] FCA 1235
Dates of hearing: 8, 9 May 2017 Registry: South Australia Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: Catchwords Number of paragraphs: 344 Counsel for the Appellant in SAD 315 of 2016 and the Respondent in SAD 317 of 2016: Mr P Hanks QC with Mr S McDonald Solicitor for the Appellant in SAD 315 of 2016 and the Respondent in SAD 317 of 2016: Australian Government Solicitor Counsel for the Respondent in SAD 315 of 2016 and the Appellant in SAD 317 of 2016: Mr B Walker QC with Dr S Churches Solicitor for the Respondent in SAD 315 of 2016 and the Appellant in SAD 317 of 2016: Iles Selley Lawyers ORDERS
SAD 315 of 2016 BETWEEN: COMMONWEALTH OF AUSTRALIA
Appellant
AND: LIVINUS EMENIKE OKWUME
Respondent
JUDGES:
BESANKO, MORTIMER AND WHITE JJ
DATE OF ORDER:
4 may 2018
THE COURT ORDERS THAT:
1.The appeal be dismissed.
2.The parties confer within 7 days about whether they can agree the costs of the appeal or the appropriate order for the disposition of the costs of the appeal.
3.If the parties are unable to agree the costs of the appeal or the order for the disposition of the costs of the appeal, then the respondent is to file and serve written submissions (limited to 4 pages) as to the appropriate order as to costs within 14 days.
4.The appellant is to file and serve written submissions (limited to 4 pages) in response to the respondent’s submissions within 21 days.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
ORDERS
SAD 317 of 2016 BETWEEN: LIVINUS EMENIKE OKWUME
Appellant
AND: COMMONWEALTH OF AUSTRALIA
Respondent
JUDGES:
BESANKO, MORTIMER AND WHITE JJ
DATE OF ORDER:
4 may 2018
THE COURT ORDERS THAT:
1.The appeal be dismissed.
2.The parties confer within 7 days about whether they can agree the costs of the appeal or the appropriate order for the disposition of the costs of the appeal.
3.If the parties are unable to agree the costs of the appeal or the order for the disposition of the costs of the appeal, then the respondent is to file and serve written submissions (limited to 4 pages) as to the appropriate order as to costs within 14 days.
4.The appellant is to file and serve written submissions (limited to 4 pages) in response to the respondent’s submissions within 21 days.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
BESANKO J:
Introduction
These are appeals from orders made by a judge of this Court in connection with the detention of Mr Livinus Okwume under the Migration Act 1958 (Cth) (the Act) in 2005 and 2006. Mr Okwume claimed that he was unlawfully detained at the Brisbane International Airport (the Airport) and then at a nearby motel (the Airport 85 Motel), and then at the Baxter Immigration Reception and Processing Centre (Baxter) near Port Augusta in South Australia from 21 July 2005 to 5 April 2006. He claimed damages and other compensation in relation to this detention. Although Mr Okwume claimed that he was detained for 294 days, the primary judge found (and there is no challenge to her Honour’s finding) that the period of detention was 259 days. In addition to his claim that he was unlawfully detained or falsely imprisoned by the Commonwealth, Mr Okwume alleged two other causes of action which he alleged arose during the course of his detention and which caused him to suffer psychiatric harm and a loss of personal property. They were claims for misfeasance in public office and negligence. The Commonwealth denied liability.
The primary judge found that Mr Okwume had been unlawfully detained between 2.55 pm on 21 July 2005 and about 8.15 am on 22 July 2005, but that for the remainder of the period he had not established that he had been unlawfully detained. Her Honour rejected the causes of action for misfeasance in public office and negligence. In the circumstances, her Honour allowed the application in part. She ordered that, with respect to the period of unlawful detention, the Commonwealth pay Mr Okwume the amount of $2,000, comprising $1,600 awarded as general damages and the amount of $400 in lieu of pre-judgment interest. She ordered that each party bear their own costs. Both parties appeal.
The Commonwealth’s appeal centres on her Honour’s conclusion that the cancellation of a visa held by Mr Okwume shortly before his detention was invalid by reason of two jurisdictional errors. The Commonwealth contends that Mr Okwume’s visa was validly cancelled and that his detention thereafter by officers acting under s 189 of the Act was lawful. The Commonwealth seeks orders that the primary judge’s orders be set aside and that Mr Okwume’s application be dismissed.
Mr Okwume’s appeal centres on her Honour’s conclusion that he had not established that he had been unlawfully detained after about 8.15 am on 22 July 2005. He contends that he was unlawfully detained until he was released from Baxter and that he should have been awarded damages on that basis. He seeks an order that his claim for damages be remitted to the primary judge for assessment on the basis that he was falsely imprisoned from 21 July 2005 until his release from Baxter. As I understand it, he also claims on his appeal, in addition or in the alternative, that the amount awarded by the primary judge for the period of detention which her Honour found was unlawful, was manifestly inadequate. Mr Okwume does not appeal against the primary judge’s rejection of his claims for misfeasance in public office and negligence.
THE FACTS
Two or possibly more decisions (and it will become clear what I mean by that later in these reasons) were made on 21 July 2005 which are critical to the issues raised on these appeals. They are a decision to cancel a visa held by Mr Okwume and a decision to detain him. The primary judge went through the events on 21 July 2005 in great detail and it is necessary for me to do the same. The following is based on the primary judge’s findings. The controversial aspects of the primary judge’s conclusions relate to the inferences she drew and her characterisation of conduct.
Mr Okwume was a citizen of the Federal Republic of Nigeria. He arrived at the Airport on a flight originating from Lagos at 7.00 am on 21 July 2005. He had with him his personal belongings, a passport and a Business (Short Stay) visa which was due to expire one month after his arrival. Mr Okwume is a nurse and he travelled to Australia ostensibly for the purpose of attending an aged care conference in Brisbane.
On 21 July 2005, Ms Kay O’Connell was one of the then Department of Immigration and Multicultural and Indigenous Affairs’ (the Department) Duty Managers at the Airport. She was not called to give evidence at the trial. Mr Glenn Andersson was an Immigration Inspector stationed at the Airport and the Minister had delegated certain decision-making powers under the Act to Mr Andersson (s 496(1)). Mr Andersson, as the Minister’s delegate, made the decision under s 116(1)(d) of the Act to cancel Mr Okwume’s visa. Mr Andersson was called to give evidence at the trial, but he had no independent recollection of the events which took place on 21 July 2005. At the time of the relevant events, Mr Andersson prepared what the primary judge described as a Running Sheet entitled “Immigration Inspector’s Report” which recorded events as they occurred. Except for one entry made by Ms O’Connell, the Running Sheet was made by Mr Andersson. On 21 July 2005, Mr Benjamin Kriss was a document examiner at the Airport. He had commenced employment with the Department in 1998. He underwent three years of in-house training, after which he was assigned the title of Forensic Document Examiner. The primary judge found that Mr Kriss was a qualified and experienced document examiner. Mr Kriss gave evidence at the trial and he said in his affidavit, and initially at least in his oral evidence, that he had no independent recollection of his involvement in the events affecting Mr Okwume on 21 July 2005. Ms Lynette Trad was another Duty Manager of the Department at the Airport on 21 July 2005 and she played a role in the relevant events as I will explain. She did not give evidence at the trial.
On arriving at the Airport, Mr Okwume presented himself to an officer of the Department who stamped his passport.
At approximately 8.55 am, Ms O’Connell examined Mr Okwume’s passport and the professional registration documents which he had in his possession. The passport revealed no obvious signs of being forged or altered, and Ms O’Connell formed the view that Mr Okwume appeared to be a “genuine nurse”. However, she also formed the view that Mr Okwume should be counselled about his visa conditions and the consequences of him staying in Australia beyond the date of the expiration of his visa. At approximately 9.15 am, and at Ms O’Connell’s direction, Mr Andersson went to counsel Mr Okwume. During the discussion, Mr Okwume told Mr Andersson that he did not want to return to Nigeria as he feared that he would be persecuted and killed there. Mr Andersson contacted Ms O’Connell who told him that Mr Okwume should be taken to the interview area. Mr Okwume was placed in an interview room at 9.30 am.
At about the same time, Mr Okwume’s passport was provided to Mr Kriss for him to examine. Mr Kriss examined Mr Okwume’s passport over a period of about two hours. Mr Andersson was with Mr Kriss for the first half hour (approximately) and he observed Mr Kriss examining Mr Okwume’s passport. Mr Kriss told Mr Andersson that there were features of Mr Okwume’s passport leading him to believe that the passport was bogus. Those features related to the printing of Mr Okwume’s signature and the method of producing the word “Nigeria” over the photograph.
At this point in the examination process, Mr Andersson was told by Ms O’Connell that he should commence what was referred to as a screening interview with Mr Okwume. Mr Andersson commenced the interview at about 10.10 am and it concluded at 11.20 am. At the time the interview commenced, Mr Andersson knew that Mr Kriss’ examination of the passport had not been completed.
Her Honour then addressed the examination which Mr Kriss carried out of Mr Okwume’s passport. She was highly critical of that examination and Mr Kriss’ conclusions. However, as far as I can see, those criticisms did not form the basis of her conclusions that there had been jurisdictional error in the cancellation process. Nevertheless, I will summarise what her Honour said as it is part of the context.
The primary judge found that Mr Kriss examined Mr Okwume’s passport over a period of about two hours. He formed the opinion that the passport had been tampered with because it had, in his opinion, a “counterfeit laminate”. Mr Kriss set out his opinion in a typewritten report that he prepared and circulated on the following day. Her Honour identified a number of admitted matters that Mr Kriss had not undertaken as part of his examination. It is not necessary for me to set out the details.
The primary judge found that Mr Kriss compared Mr Okwume’s passport with a specimen passport provided to the Department by the Federal Republic of Nigeria bearing the date of 23 January 1998. Mr Kriss acknowledged that the specimen passport was a critical document in his examination process. The primary judge said that the specimen passport was not a passport issued in respect of any particular person. It was a sample provided by authorities in Nigeria to the Department to enable its document examiners to identify the features of a genuine Nigerian passport for screening purposes.
The primary judge found that the physical properties of a passport include features that are inherent in the manufacturing process and features that are created by the authority issuing the passport to an applicant. The manufactured document is known as the base document and it contains security features, including a laminate coating embossed with a fine pattern which the primary judge said resembled a fingerprint. An authority that issues passports to passport applicants is known as an issuing authority. An issuing authority adds additional features to the base document, such as printed words and images specific to the passport applicant’s identity.
The primary judge found that both manufacturing processes and issuing practices may change over time. In addition, issuing authorities may commit faults when dealing with a base document.
Mr Kriss explained that if there was a difference between the features of a person’s passport and that of the specimen passport, the difference could well be explained by a change in issuing practices, or a change in manufacturing practices since the creation of the specimen document, or the difference might also be explained by fraud. These alternatives are regarded by the document examiner as a list of hypotheses to be explored.
Mr Kriss explained that the document examiner performs research to explore whether the available explanations are soundly based and notes the results of that research. A conclusion may then be reached by excluding possible explanations until only one possible explanation remains.
The primary judge said that Mr Kriss concluded with certainty, rather than in terms of a suspicion, that the laminate on Mr Okwume’s passport was “counterfeit”. He reached that conclusion by first observing that the printing on the laminate was “irregular” in comparison with the specimen and that there were differences in the relief pattern on the laminate, also in comparison with the specimen. The primary judge said that in the course of his examination, Mr Kriss noted that these differences might well be explained by a “change in manufacturing process”.
The primary judge referred to Mr Kriss’ evidence in cross-examination. Mr Kriss was unable to point to any established system whereby the Department was able to ensure that the specimen passport used for comparison purposes was the most recent model of passport manufactured in, and issued from, Nigeria. Mr Kriss acknowledged that he himself had not made inquiries on 21 July 2005 to determine whether there had been any change in the manufacturing processes or issuing practices since he first obtained the comparator passport. The primary judge noted that that acknowledgement was not readily forthcoming. She said that in the course of his evidence on this, Mr Kriss’ demeanour was evasive and defensive. The primary judge noted that Mr Kriss had said that it was not important if the specimen passport was out of date because it was not the only document he had relied on in forming his conclusion that the laminate on Mr Okwume’s passport was counterfeit. The primary judge said that Mr Kriss did not adequately explain how the additional information bore on the formation of his opinion. Her Honour recorded the fact that the foundation of Mr Kriss’ opinion was that the laminate on Mr Okwume’s passport was different from that on the comparator. He did not give any evidence to the effect that any additional information he had relied upon confirmed one way or the other whether that difference might be explained by a change in manufacturing processes or issuing practices for Nigerian passports.
Mr Kriss said that in performing his examination, he referred to a database known as Edison. However, the primary judge said the contemporaneous reports made by Mr Kriss make no mention of him referring to Edison for the purposes of either accessing a more up-to-date specimen passport, or even for the purpose of checking whether a more up-to-date specimen passport had been issued. Had Mr Kriss used Edison for that specific purpose, he could reasonably have been expected to have made reference in his notes and reports to having done so. The primary judge noted that Mr Kriss’ responses in cross-examination also indicated that he had not used Edison for that particular purpose. His demeanour suggested that he had been caught off-guard by questions concerning the longevity of the specimen.
The primary judge also noted that the change in the spelling of a word on the passport had prompted Mr Kriss to obtain additional information, but it was not sufficient to cause him to make further inquiries to establish whether the specimen passport relied upon by him might well be outdated and, therefore, an unreliable comparator.
The primary judge noted that under re-examination, Mr Kriss offered explanations in support of his opinion in such a way that was inconsistent with his affidavit evidence. The primary judge rejected “particularly” Mr Kriss’ evidence in re-examination concerning a document alert issued by a Canadian authority giving particulars of a fraudulent Nigerian passport that had been presented to the Canadian High Commissioner in Pretoria. It is not necessary for me to set out any further details.
The primary judge found that Mr Kriss informed Ms O’Connell of his opinion concerning Mr Okwume’s passport not before 11.20 am and not after 11.45 am on 21 July 2005.
Following the screening interview, Mr Andersson contacted Ms O’Connell at about 11.20 am. Mr Andersson expressed the view that it may be appropriate to cancel Mr Okwume’s visa under s 116(1)(a) of the Act because “the circumstances permitting the grant of the visa no longer existed”. The following entry describes the interaction between Mr Andersson and Ms O’Connell at this point:
AT 1120HRS DM CONSULTED. I ADVISED THAT AS PAX PRIMARY PURPOSE IN TRAVELLING TO A/A WAS TO ENGAGE AUSTRALIA’S PROTECTION OBLIGATIONS, THE CIRCUMSTANCES PERMITTING THE GRANT OF THE VISA NO LONGER EXISTED AND THAT S116 (1) (A) MAY BE AN APPROPRIATE SECTION OF THE MA TO CONSIDER VISA CANCELLATION UNDER. DM AGREED AND ASKED IF I HAD TAKEN PAX INTO S192 DETENTION PER NEW AIRPORT POLICY. I ADVISED THAT I HAD NOT BUT WOULD DO SO ASAP.
(Original formatting retained.)
The reference to “DM” is a reference to Ms O’Connell and the reference to “PAX” is a reference to Mr Okwume.
Section 192 of the Act provides that where an officer knows or reasonably suspects that a non-citizen holds a visa that may be cancelled under, relevantly, Subdivision D of Division 3 of the Act, the officer may detain the non-citizen for questioning.
The primary judge drew the inference from the entry in the Running Sheet that Mr Andersson informed Mr Okwume shortly after 11.20 am on 21 July 2005 that he was detained pursuant to s 192 of the Act.
The next event is recorded in the Running Sheet as follows:
1145HRS DM ADVISED THAT IT WAS UNNECESSARY TO CANCEL PAX VISA AS HE DID NOT MEET S166 REQUIREMENTS DUE TO HIS PRESENTING A BOGUS DOC.
AT 1225 HOURS ON ADVICE FROM DM PAX WAS DETAINED IN S189 DETENTION AS HE DID NOT MEET S166 REQUIREMENTS AS HE DID NOT PRESENT A VALID PASSPORT IN CLEARANCE.
(Original formatting retained.)
The reference to “S166 requirements” is a reference to the requirements that must be satisfied before the person can be “immigration cleared” for the purposes of the Act and then leave the port of their arrival, in this case the Airport, and enter Australia (see s 172 of the Act).
The primary judge drew the inference that Mr Okwume was told by Mr Andersson that he was detained at 12.25 pm purportedly under s 189 of the Act on the basis that he “did not meet s 166 requirements”. Mr Okwume’s visa had not been cancelled at that time.
In July 2005, GSL (Australia) Pty Ltd (GSL) provided services to the Department in relation to the detention of persons under the Act. The Villawood Immigration Detention Centre (Villawood) was a detention centre operated by GSL. At 1.00 pm, Ms O’Connell sent a facsimile entitled “Request for Services Form” to the Detention Services General Manager at Villawood. The Form provided that the addressee was requested to detain Mr Okwume on the basis that he was an unlawful non-citizen. The Form contained a request that GSL personnel attend the Airport to keep Mr Okwume under “static guard”. The primary judge said that the Form provided further support for the conclusion that Mr Okwume was detained at around 12.25 pm, purportedly under s 189 of the Act because of Ms O’Connell’s conclusion that he had not met the requirements of s 166 of the Act.
The next relevant entry in the Running Sheet is as follows:
LEGAL ADVICE DATED 2003 WAS SUBSEQUENTLY PROVIDED BY ANOTHER INSPECTOR TO DM WHICH INDICATED THEY NEED TO PROCEED WITH VISA CANCELLATION IN THIS CASE. DM REQUESTS THAT WHEN PAX CALMS DOWN, I PURSUE CANCELLATION PROCEDURES UNDER S116 (1) (D) MA.
(Original formatting retained.)
The primary judge said that the reference to “Legal Advice Dated 2003” was a reference to legal advice provided to the Department in 2003. The effect of the advice in terms of its application to Mr Okwume was that Mr Okwume could not be detained under s 189 by reason of his non-compliance with the requirements of s 166 of the Act. This advice was provided to Ms O’Connell after she had directed that Mr Okwume be detained and after the request she made to GSL.
The primary judge noted the terms of the entry in the Running Sheet and, in particular, the terms of Ms O’Connell requesting Mr Andersson to pursue cancellation procedures under s 116(1)(d) of the Act. As I will explain later, the primary judge placed weight on the terms of the entry in reaching her conclusion concerning the second jurisdictional error attending Mr Andersson’s cancellation decision.
I come now to Mr Andersson’s decision to cancel Mr Okwume’s visa (cancellation decision).
The Running Sheet contains the following entry:
AT 1435 HRS I INFORMED PAX THAT FROM THE EVIDENCE AVAILABLE THAT THERE MAY BE GROUNDS FOR CANCELLATION OF HIS VISA UNDER S116 (1) (D) – S103 BOGUS DOCUMENT GIVEN.
FOR THE FOLLOWING REASONS:
PAX PRESENTED BOGUS NIGERIAN PASSPORT … ON ENTRY …
(Original formatting retained.)
Mr Andersson served on Mr Okwume a document titled “Notice of Intention to Consider Cancellation under section 116 of the Migration Act”. The document consists of three parts, Part A, Part B and Part C. The primary judge described the document as “a standard form apparently designed for officers of the Department to record events and decisions by ticking and completing boxes” (at [69]).
Part A is described as “Notice of Intention to Consider Cancelling a Visa” and Section 2 of Part A has provision for a statement of the possible grounds for cancellation. In that section, Mr Andersson wrote the following:
You have presented a bogus document at Brisbane Airport on 21.7.05.
The entry in Part A provides that Mr Okwume would be given 10 minutes from 2.35 pm to comment. Section 6 of Part A provides for the recipient to verify that the notice has been received. Mr Okwume signed the document above the date of 21 July 2005 and the time of 2.35 pm.
Part B of the Form is entitled, “Record of Decision whether to Cancel Visa”. The particulars inserted in the Form indicate that Mr Okwume was provided with the Notice of Intention to Consider Cancellation at 2.48 pm on 21 July 2005. As recorded by Mr Andersson, the particulars of the reasons Mr Okwume considered that grounds for cancellation did not exist were that the passport was not false and it was legitimately obtained from the Nigerian government. The particulars of the reasons Mr Okwume gave for why his visa should not be cancelled were that it did not matter “as long as protection claims are heard”. The particulars of the evidence and reasons why grounds for cancellation existed were that the Airport document examiner advised that Mr Okwume entered Australia on a bogus document.
Mr Andersson proceeded to make the decision to cancel Mr Okwume’s visa. He recorded the fact that Mr Okwume said that his purpose in travelling and staying in Australia was to escape persecution in Nigeria. He recorded the fact that Mr Okwume said that he would not suffer hardship “as regardless protections claims would be heard”. The primary judge found that when Mr Okwume said this he had already been informed that he had been detained under s 189 of the Act, that he had not been informed that his detention some three hours earlier was not lawfully justified and that he was not informed that if his visa was cancelled, his detention was not only legally authorised, but mandated.
Mr Andersson recorded the following:
I have taken into account the pax response to the notice of intention to cancel his visa and on balance have decided to cancel his visa.
Mr Andersson recorded that he made his decision to cancel Mr Okwume’s visa at 2.55 pm on 21 July 2005.
At some time on 21 July 2005, and after Mr Okwume’s visa had been cancelled, Ms O’Connell prepared and signed a document entitled “File Note Re Livenus Okwume DOB: 1.5.63” (File Note). The File Note is in the following terms:
At the end of the screening interview Mr Okwume was advised that he did not meet s166 requirements as he did not present a valid passport for clearance. (Document Examiner, Ben Kriss had identified anomalies with the passport and assessed that it was not a genuinely issued passport). Mr Okwume was subsequently advised that as he did not meet S166 requirements he was not lawful and therefore subject to detention under S189.
However, it came to my attention after the interview that a legal opinion received via Airports Policy Section on 8.12.2003 stated that ‘doubts about the validity of a passport have no effect on a person’s compliance with s166 of the Act … and that … a person who comes to notice in immigration clearance holding a bogus or otherwise invalid passport, visa, or whose visa application contained false information is that the persons visa should be cancelled under s116(1)(d).
To confirm this legal advice I telephone Jamal Houssami, Character and Cancellation Section, CO who also advised that the in these circumstances the visa should be cancelled under s116(1)(d).
I subsequently, advised the Borders Manager, Doug Callaghan of the situation and we determined that we would proceed with the cancellation of the visa as a separate decision to the initial decision of Mr Okwumi not meeting s166 requirements.
As such Mr Okwuma was then taken through the visa cancellation process under s116 ie. he was served the NOIC and advised of the grounds for the intent to cancel his visa, provided 10 mins for his response and then the decision to cancel his visa was made.
(Originating formatting retained.)
The primary judge said that this File Note and the entries in the Running Sheet supported an inference that Ms O’Connell (together with another officer of the Department named Mr Doug Callaghan) had formed the view that Mr Okwume’s visa should be cancelled under s 116(1)(d) of the Act and that their conclusions in that regard were communicated to Mr Andersson “in those same terms” (at [77]).
Mr Andersson prepared a report entitled “Detention Report” and that report included a statement that he had cancelled Mr Okwume’s visa under s 116(1)(d) of the Act. The Detention Report was emailed to a number of recipients and those recipients included Ms O’Connell and Ms Trad. Ms Trad received the Detention Report by email at 5.39 pm on 21 July 2005.
At 5.15 pm, Ms O’Connell sent another facsimile to GSL, again directed to the Detention Services General Manager of Villawood. By that facsimile, Ms O’Connell requested that Mr Okwume be collected from the Airport and held in detention at the Airport 85 Motel until arrangements had been made for his transfer to Baxter. Mr Okwume left the Airport in the custody of GSL personnel at around 5.45 pm.
By 6.10 pm, Mr Callaghan had booked a flight to convey Mr Okwume from Brisbane to Adelaide scheduled to depart at 8.15 am the following day.
At about 8 pm, Ms Trad sent a facsimile to GSL. She directed GSL personnel to accompany Mr Okwume on a domestic flight on 22 July 2005 from Brisbane to Adelaide and from there, into the custody of the manager of Baxter. The primary judge inferred that Mr Okwume departed Brisbane in the custody of GSL personnel, acting under the instructions of Ms Trad, at the scheduled time of 8.15 am on 22 July 2005.
The primary judge said that the communications from Ms O’Connell and Ms Trad to GSL personnel each contained a statement to the effect that Mr Okwume was, or was known to be, or reasonably suspected to be, an unlawful non-citizen. The primary judge said that it may be readily inferred that GSL personnel, who physically restrained Mr Okwume and transferred him to Baxter and thereafter held him in detention, had read and acted upon those statements. There was no reason to question the good faith of the relevant GSL personnel.
The Primary Judge’s Reasons
The primary judge said that with respect to Mr Okwume’s claim that he was unlawfully detained or falsely imprisoned by the Commonwealth, Mr Okwume was required to prove the period during which his freedom of physical movement was curtailed. However, it was for the Commonwealth to prove that detention during that period was lawfully justified. The primary judge said that, although Mr Okwume pleaded a number of matters which were relevant to the issue of whether his visa had been validly cancelled, he expressly put the Commonwealth to proof as to the lawfulness of his detention and the trial proceeded on the basis that the inquiry as to the lawfulness of Mr Okwume’s detention was not limited to the allegations he made (at [105]). Her Honour said that ultimately, it is for the Court to determine whether the Commonwealth’s case of lawful detention is made out.
The primary judge said that the Commonwealth’s case was that Mr Okwume was detained pursuant to s 189 of the Act and that the duration of the detention was determined by s 196 of the Act.
The primary judge summarised Mr Okwume’s detention by different officers for different periods as follows (at [108]):
Mr Okwume was detained or caused to be kept in detention by different officers for different periods, as follows:
(1)the period commencing at about 11:20am on 21 July 2005 when Mr Andersson told Mr Okwume that he was held in detention pursuant to s 192 of the Act (see [61] — [62] above) until;
(2)the period commencing at about 12:25pm when Mr Andersson told Mr Okwume that he was held in detention pursuant to s 189 of the Act by reference to his alleged non-compliance with the requirements of s 166 of the Act (see [65] – [66] above) until;
(3)the period commencing at 2:55pm when Mr Andersson cancelled Mr Okwume’s visa and notified Mr Okwume that he was detained under s 189 of the Act because he was reasonably suspected to be an unlawful non‑citizen (see [73] above) until;
(4)the period commencing at about 5:45pm on 21 July 2005 when GSL personnel, acting under the direction of Ms O’Connell, escorted Mr Okwume from Brisbane International Airport to a motel (see [79] above) until;
(5)the period commencing at about 8:15am on 22 July 2005 when GSL personnel, acting under the direction of Ms Trad, escorted Mr Okwume on a flight from Brisbane to Adelaide and from there to Baxter (see [81] above) until Mr Okwume’s eventual release upon being granted a temporary protection visa on 5 April 2006.
As I have said, Mr Okwume does not make a claim for his detention prior to 2.55 pm on 21 July 2005.
An overview of her Honour’s reasons is as follows. First, she analysed the requirements of s 189 of the Act. Secondly, her Honour addressed whether Mr Andersson’s decision to cancel Mr Okwume’s visa was invalid by reason of jurisdictional error. She held that it was and that there were two jurisdictional errors, either of which, as I read her Honour’s reasons, was sufficient to invalidate the cancellation decision. The first jurisdictional error was a failure by Mr Andersson to comply with s 119(1)(a) of the Act in connection with the cancellation decision. The second jurisdictional error was a failure by Mr Andersson to bring an independent mind to the decision whether to cancel Mr Okwume’s visa. The primary judge found that Mr Andersson had acted at the direction of Ms O’Connell. Thirdly, her Honour addressed whether each of Mr Andersson, Ms O’Connell and Ms Trad had a reasonable suspicion that Mr Okwume was an unlawful non-citizen within s 189 of the Act. She did so on the basis that Mr Okwume’s freedom of physical movement was first restrained by Mr Andersson and then, from late in the afternoon on 21 July 2005, it was restrained by GSL personnel acting under the direction of Ms O’Connell, and then from about 8.15 am on 22 July 2005 by Ms Trad (at [181], [184]). Her Honour found that Mr Andersson and Ms O’Connell had a subjective, but not a reasonable, suspicion that Mr Okwume was an unlawful non-citizen within s 189 of the Act. She found that Ms Trad had a reasonable suspicion that Mr Okwume was an unlawful non-citizen within s 189 of the Act and, therefore, Mr Okwume’s detention was not unlawful after an “undetermined time” on the morning of 22 July 2005. I think that her reasons as a whole make it clear that her Honour found that the time was about 8.15 am.
I turn now to the primary judge’s reasons for reaching these conclusions.
Section 189 relevantly, provides:
189 Detention of unlawful non-citizens
(1)If an officer knows or reasonably suspects that a person in the migration zone (other than an excised offshore place) is an unlawful non-citizen, the officer must detain the person.
….
Her Honour noted that s 189 does not give officers a discretion whether or not to detain a person. It imposes an obligation on an officer in the circumstance identified.
Section 13(1) of the Act provides that a person is a lawful non-citizen in the migration zone if he or she holds a visa that is in effect and s 14(1) provides that a non-citizen in the migration zone who is not a lawful non-citizen is an unlawful non-citizen for the purposes of the Act. Section 15 provides that when a visa is cancelled, its former holder (if in the migration zone) becomes on the cancellation, an unlawful non-citizen unless, immediately after the cancellation, he or she holds another visa that is in effect.
There is a definition of “detain” in s 5(1) of the Act and it is as follows:
detain means:
(a) take into immigration detention; or
(b) keep, or cause to be kept, in immigration detention;
and includes taking such action and using such force as are reasonably necessary to do so.
Note: This definition extends to persons covered by residence determinations (see section 197AC).
There is also a definition in the same subsection of “immigration detention” and it includes being detained in the company of and restrained by an officer or being held by, or on behalf of, an officer in a detention centre established under the Act. At the relevant time, Baxter was a detention centre established under the Act.
The word “restrain” is not defined in the Act, but, as the primary judge noted, there was no dispute at trial that Mr Okwume was restrained at the Airport and thereafter (at [115]).
Each of Mr Andersson, Ms O’Connell and Ms Trad were officers under the Act.
Her Honour considered the meaning of “reasonably suspects” and the interpretation of the phrase in Goldie v Commonwealth of Australia [2002] FCAFC 100; (2002) 117 FCR 566 (Goldie) and by the High Court in Ruddock v Taylor [2005] HCA 48; (2005) 222 CLR 612 (Ruddock v Taylor). The primary judge said (at [119]) that she distilled the following principles from the reasons of Gray and Lee JJ at [4]-[7] in Goldie:
(1)standing alone, the word “suspects”, is capable of being construed to include the formation of an imagined belief, having no basis in fact;
(2)the word “reasonably” conditions the word “suspects” to avoid the arrest of persons on the basis of a suspicion that has been arbitrarily or irrationally formed;
(3)a suspicion that a person is an unlawful non-citizen must be objectively justifiable on the basis of relevant material, including that material which is discoverable by efforts of search and enquiry that are reasonable in the circumstances;
(4)what is reasonable in a particular case depends upon all of the circumstances of that case, including the facts known to the officer at the particular time;
(5)if an officer is aware of conflicting facts, it may not be reasonable to act only on facts capable of supporting a suspicion whilst disregarding facts tending to support against the formation of the suspicion;
(6)the consequences befalling a person detained pursuant to s 189 support a construction that the officer forming the reasonable suspicion is obliged to make due enquiry to obtain material likely to be relevant to the formation of the suspicion;
(7)a suspicion that cannot otherwise be reasonably formed does not become reasonable because of a perceived need to act quickly.
Her Honour considered Ruddock v Taylor in detail. She noted that the High Court made it clear that the lawfulness of a decision to cancel a visa and the lawfulness of the detention thereafter were two separate inquiries. Further, the High Court rejected a distinction between a mistake of fact and a mistake of law and said that an officer may have a reasonable suspicion within s 189 of the Act, even though he or she is mistaken in law. Her Honour said that Ruddock v Taylor is authority for the proposition that whether an officer has a reasonable suspicion depends on what was known to the officer and what was reasonably capable of being known. She referred to the following passage in the reasons (at [40]):
The short answer to the contention is that what constitutes reasonable grounds for suspecting a person to be an unlawful non-citizen must be judged against what was known or reasonably capable of being known at the relevant time. …
Her Honour said that what was reasonably capable of being known involved an objective assessment and that a suspicion cannot be held to have been reasonably formed if there are matters which would put a reasonable person in the officer’s position on notice that the cancellation decision is irregular or ineffective (at [130]). This is the test of a reasonable suspicion which her Honour applied (at [134]). In addition, her Honour said that as there may be a reasonable suspicion even in the case of a mistake of law, it is appropriate to take into account what the officer ought reasonably have known as to the requirements of the law (at [131]).
Her Honour said that she was satisfied that Mr Andersson bona fide suspected that Mr Okwume was an unlawful non-citizen (at [135]).
Her Honour said that for the practical purposes of proof, the relevant test may be expressed in the negative as whether the relevant officers did not know and ought not reasonably have known matters that would put a reasonable person in the officer’s position on notice that the decision to cancel Mr Okwume’s visa was irregular or ineffective.
Having stated the relevant test, her Honour turned to consider whether Mr Andersson’s decision to cancel Mr Okwume’s visa was vitiated by jurisdictional error.
Her Honour set out the sections of the Act which were relevant to Mr Andersson’s decision to cancel Mr Okwume’s visa. Section 116(1) relevantly provides:
116 Power to cancel
(1)Subject to subsections (2) and (3), the Minister may cancel a visa if he or she is satisfied that:
…
(d)if its holder has not entered Australia or has so entered but has not been immigration cleared—it would be liable to be cancelled under Subdivision C (incorrect information given by holder) if its holder had so entered and been immigration cleared; or
…
Mr Andersson treated Mr Okwume as not having been immigration cleared and it was not suggested that that was the wrong approach.
Her Honour said that the procedural fairness obligations attending the exercise of the power in s 116(1) were those in ss 119 and 120. There is no challenge to that conclusion. Those sections provide:
119 Notice of proposed cancellation
(1)Subject to Subdivision F (non-citizens outside Australia), if the Minister is considering cancelling a visa, whether its holder is in or outside Australia, under section 116, the Minister must notify the holder that there appear to be grounds for cancelling it and:
(a)give particulars of those grounds and of the information (not being non disclosable information) because of which the grounds appear to exist; and
(b) invite the holder to show within a specified time that:
(i) those grounds do not exist; or
(ii) there is a reason why it should not be cancelled.
(2)The holder is to be notified in the prescribed way or, if there is no prescribed way, a way that the Minister considers to be appropriate.
(3)The way of notifying the holder, whether prescribed or considered appropriate, may, without limiting the generality of subsection (2), be orally.
(4)The other provisions of this Subdivision do not apply to a cancellation:
(a) under a provision other than section 116; or
(b) to which Subdivision F applies.
120 Certain information must be given to visa holder
(1)In this section, relevant information means information (other than non—disclosable information) that the Minister considers:
(a)would be the reason, or a part of the reason, for cancelling a visa; and
(b)is specifically about the holder or another person and is not just about a class of persons of which the holder or other person is a member; and
(c) was not given by the holder; and
(d)was not disclosed to the holder in the notification under section 119.
(2) The Minister must:
(a) give particulars of the relevant information to the holder; and
(b)ensure, as far as reasonably practicable, that the holder understands why it is relevant to the cancellation; and
(c) invite the holder to comment on it.
(3)The particulars and invitation are to be given in the way that the Minister considers appropriate in the circumstances.
The ground in Subdivision C upon which Mr Andersson relied was that contained in s 103 of the Act which provides as follows:
103 Bogus documents not to be given
A non-citizen must not give an officer, the Minister, or a tribunal performing a function or purpose under this Act, a bogus document or cause such a document to be so given.
The phrase “bogus document” is defined in s 97 of the Act as follows:
bogus document, in relation to a person, means a document that the Minister reasonably suspects is a document that:
(a) purports to have been, but was not, issued in respect of the person; or
(b)is counterfeit or has been altered by a person who does not have authority to do so; or
(c)was obtained because of a false or misleading statement, whether or not made knowingly.
A key submission made by the Commonwealth to the primary judge was that a delegate in Mr Andersson’s position may form a reasonable suspicion that a passport is a bogus document by adopting the opinion of a person who is a qualified and experienced document examiner, such as Mr Kriss.
In dealing with this submission, the primary judge said that Mr Andersson, in making his decision, could obtain and take into account Mr Kriss’ opinion. However, he was not entitled to form a reasonable suspicion that the document was a bogus document simply on the basis that Mr Kriss had formed the opinion that the document was bogus without knowledge of the facts and assumptions upon which the opinion was based because: first, if it were otherwise, Mr Andersson would be acting at the dictation of Mr Kriss; secondly, Mr Andersson’s suspicion must be reasonable and that means a suspicion formed on the basis of not only what he knew, but also on what he ought reasonably to have known; and, finally, if the position were otherwise, the procedural fairness obligations in s 119(1) would be thwarted or frustrated. In this context, her Honour said that by adopting the opinion of Mr Kriss in relation to Mr Okwume’s passport, Mr Andersson was “to be taken to have made the same assumptions and findings and adopted the same reasoning of Mr Kriss” (at [154]).
The primary judge said that Mr Andersson should have advised Mr Okwume of the facts and matters underlying Mr Kriss’ opinion, including information to the effect that the laminate on Mr Okwume’s passport differed in comparison with the specimen passport that had (at least apparently) been issued some seven years previously. His failure to do so was a jurisdictional error.
The primary judge held that there was a further related error vitiating Mr Andersson’s decision. He acted in accordance with a perceived responsibility to act in accordance with the preferences of his Duty Manager, Ms O’Connell, and, in so doing, permitted an extraneous circumstance to interfere with his function of making an independent decision. The primary judge said that, expressed in another way, he had a closed mind in connection with the decision he was called upon to make.
Her Honour noted that the two jurisdictional errors that she held had been made had not been pleaded by Mr Okwume. Her Honour noted that it had not been put to Mr Andersson in cross‑examination that he had failed to observe the requirements of s 119 of the Act and she said that this omission could be explained by counsel for Mr Okwume not having founded a case on a breach of that provision. She addressed the jurisdictional errors which Mr Okwume had pleaded. Other than leaving one undetermined, she held that none of the pleaded errors had been made out. Her Honour said that there was no unfairness in deciding the case on the basis of the two jurisdictional errors she held had been made because the onus was on the Commonwealth to prove lawful justification for Mr Okwume’s detention and Mr Andersson had no independent recollection of the relevant events to rebut inferences. Her Honour said (at [180]):
I am satisfied that there is no unfairness to the respondent in determining that Mr Andersson contravened the Act in the manner I have identified in these reasons. The onus lay upon the respondent to prove that there was lawful justification for Mr Okwume’s detention. Mr Andersson clearly deposed without qualification in his evidence-in-chief that he had no independent recollection of any of the steps taken in cancelling Mr Okwume's visa. Consistent with that evidence, there was no oral evidence Mr Andersson could give to rebut the inferences available to be drawn from the documentary evidence, considered as a whole.
The remaining question was whether Mr Okwume’s detention was lawful. With respect to Mr Andersson, the primary judge held that he ought reasonably have known the conditions of the exercise of the power in s 116 (i.e., ss 119 and 120). Mr Andersson knew or ought reasonably have known facts and matters that constituted a departure from the requirements in ss 119 and 120, including the fact that he had not given Mr Okwume particulars of the information upon which there appeared to be grounds for cancelling the visa in accordance with s 119(1)(a). Furthermore, Mr Andersson knew that Ms O’Connell and another officer had, in his mind, determined that Mr Okwume’s visa should be cancelled so as to justify his detention and he knew that he was acting with the intention of achieving that objective. In those circumstances, Mr Andersson did not reasonably suspect Mr Okwume to be an unlawful non‑citizen, albeit that, as her Honour said, he did not subjectively appreciate that his decision was irregular or ineffective.
With respect to Ms O’Connell, the primary judge found that she directed GSL to restrain Mr Okwume’s freedom of physical movement at about 5.15 pm on 21 July 2005 for the purpose of removing him from the Airport to the Airport 85 Motel. That period of detention ceased when GSL personnel, acting upon Ms Trad’s instruction, conveyed Mr Okwume from the Airport 85 Motel to the Airport and from there to Adelaide. The primary judge found that Ms O’Connell did not reasonably suspect that Mr Okwume was an unlawful non‑citizen because of what she knew or ought reasonably have known at the relevant time. Ms O’Connell was an active and direct supervisor of Mr Andersson and she ought reasonably to have known the requirements of the law pursuant to which the visa was cancelled. She gave a “direction” to Mr Andersson that Mr Okwume’s visa should be cancelled. She read the forms completed by Mr Andersson which evidenced the things said and done by him in the course of making the cancellation decision. The primary judge said that even if she is wrong in reaching those conclusions in respect of Ms O’Connell, the Commonwealth has not discharged the onus of proof in relation to Ms O’Connell.
With respect to Ms Trad, the primary judge said that she was satisfied that Ms Trad was advised of the cancellation decision and that, having regard to that advice, Ms Trad suspected Mr Okwume to be an unlawful non-citizen. The primary judge found that Ms Trad did not participate in the making of the cancellation decision in any way that might support an inference that she knew, or ought reasonably to have known, facts or matters that would put a reasonable officer in her position on notice that the cancellation decision was irregular or ineffective. Nor was there anything in the information conveyed to her that would or ought to have put her on notice as to any irregularities affecting the cancellation decision. The primary judge concluded that Ms Trad was entitled to proceed on the assumption (albeit mistaken) that the decision was legally effective. In the circumstances, Ms Trad’s detention of Mr Okwume was lawfully justified.
THE APPEAL BY THE COMMONWEALTH
The Commonwealth’s Notice of Appeal contains five grounds of appeal. They may be categorised in the following way. Grounds 1, 2, 4 and 5 challenge the primary judge’s conclusion that Mr Andersson committed two jurisdictional errors in connection with his decision to cancel Mr Okwume’s visa. Grounds 1 and 4 relate to the holding that Mr Andersson failed to comply with s 119(1)(a) of the Act. Grounds 2 and 5 relate to the holding that, to put the matter generally at this stage, Mr Andersson failed to bring an independent mind to bear on his decision to cancel Mr Okwume’s visa. As developed in submissions, Ground 3 is to the effect that, even if there were one or more jurisdictional errors in connection with the cancellation decision, the primary judge erred in holding that Mr Andersson and Ms O’Connell did not hold a reasonable suspicion that Mr Okwume was an unlawful non-citizen for the purposes of s 189 of the Act.
The jurisdictional error based on Mr Andersson’s failure to comply with s 119(1)(a) of the Act (Grounds 1 and 4)
The Commonwealth submitted that the primary judge erred in holding that Mr Andersson had not complied with s 119(1)(a) of the Act in that he had not notified Mr Okwume of the particulars of the grounds which appeared to be grounds for cancelling Mr Okwume’s visa and the information because of which those grounds appeared to exist. More particularly, as I have said, the primary judge concluded that Mr Andersson should have notified Mr Okwume of the facts and matters which formed the basis of Mr Kriss’ opinion, including the information to the effect that the laminate on Mr Okwume’s passport differed in comparison with the specimen passport that had (at least apparently) been issued some seven years previously (at [159]).
The Commonwealth challenged the primary judge’s reasoning on two grounds.
First, the Commonwealth submitted that it was not open to the primary judge to hold that Mr Andersson had failed to comply with s 119(1)(a) because that had not been pleaded by Mr Okwume as a jurisdictional error and had not been raised by him during the trial (Ground 1). Mr Okwume had pleaded six alleged jurisdictional errors, but other than leaving one alleged error undetermined, the primary judge held that none of the pleaded jurisdictional errors had been established (at [168]-[173]). In addition to the absence of a pleading, the Commonwealth pointed to the fact that, in an exchange between the primary judge and counsel for Mr Okwume in closing submissions, counsel for Mr Okwume expressly told the Court that he was not relying on an allegation that Mr Andersson had failed to comply with the rules of procedural fairness in connection with the cancellation decision.
The Commonwealth submitted that her Honour’s reasons for concluding that there would be no unfairness to the Commonwealth in allowing Mr Okwume to rely on ss 119 and 120 of the Act were erroneous. The Commonwealth submitted that, in the circumstances, it was denied procedural fairness in connection with her Honour’s conclusion that Mr Andersson had failed to comply with s 119(1)(a) of the Act.
Secondly, the Commonwealth submitted that, even if the preceding argument fails, the primary judge’s reasoning was erroneous and she erred in holding that Mr Andersson had failed to comply with the requirements of s 119(1)(a) (Ground 4). The elements of this submission as revealed in the Commonwealth’s Notice of Appeal were as follows. First, the primary judge erred in holding that Mr Andersson could not hold an objectively reasonable suspicion that Mr Okwume’s passport was a bogus document within the meaning of s 97 of the Act based solely on the fact that a qualified and experienced document examiner had concluded that the passport was a bogus document. Secondly, the primary judge erred in holding that Mr Andersson “was taken to” have made the same assumptions and findings and adopted the same reasoning as Mr Kriss on whose opinion he relied. Thirdly, the primary judge erred in finding that Mr Kriss had unreasonably failed to satisfy himself that he had compared Mr Okwume’s passport with a current and reliable specimen and thereby erred in inferring that there was any reason for Mr Andersson to doubt Mr Kriss’ conclusions. It is convenient to note at this stage as to this third element that, although the primary judge certainly found that Mr Kriss had unreasonably failed to satisfy himself that he had compared Mr Okwume’s passport with a current and reliable specimen (at [161]), she did not hold that there was jurisdictional error by Mr Andersson on the basis that he could not have reasonably suspected that Mr Okwume’s passport was a bogus document. Her Honour held that there was jurisdictional error on the basis that Mr Andersson had failed to comply with s 119(1)(a). The fourth and final element in the Commonwealth’s submission was that had the primary judge held that Mr Andersson could hold an objectively reasonable suspicion that Mr Okwume’s passport was a bogus document solely on the basis that Mr Kriss had concluded that the passport was a bogus document (as the Commonwealth submitted she should have), then a conclusion that he complied with s 119(1)(a) must follow. In the circumstances, to notify Mr Okwume that he had presented a bogus document at the Airport on 21 July 2005 was sufficient compliance with s 119(1)(a).
The Commonwealth directed its written and oral submissions to Ground 4 first and then Ground 1. I will address the submissions in the same order.
The Commonwealth accepts that Mr Andersson was required to reasonably suspect that Mr Okwume’s passport was a bogus document. However, the Commonwealth submitted that a suspicion was “a state of conjecture or surmise where proof is lacking” (George v Rockett [1990] HCA 26; (1990) 170 CLR 104 (George v Rockett) at 115). Although there must be an evidential foundation for a suspicion to be “reasonable”, that evidential foundation need not rise to the level of proof of the suspected fact. The Commonwealth submitted that it is commonplace for decision-makers to reach a state of belief based on opinions expressed by persons with greater expertise. The position was even stronger where the belief in issue was suspicion. The analysis which the Commonwealth urges this Court to adopt is as follows. First, s 119(1)(a) required Mr Andersson to give Mr Okwume particulars of the grounds for cancelling the visa and of the information because of which the grounds appear to exist. Secondly, the “grounds” in this case are the presentation of a passport which Mr Andersson reasonably suspected to be a bogus document. Thirdly, because the “grounds” involved Mr Andersson’s suspicion, the particulars of the information because of which the grounds appear to exist were particulars of the information on which Mr Andersson based his suspicion. In this case, that was Mr Kriss’ opinion. Mr Kriss was known to Mr Andersson to be an expert document examiner who had examined Mr Okwume’s passport and concluded that it was a bogus document. The Commonwealth further submitted that the primary judge had not explained the reasons for her conclusion that Mr Andersson was taken to have made the same assumptions and findings and adopted the same reasoning as Mr Kriss.
The Commonwealth submitted that in this case, Mr Andersson, in order to perform his function of deciding whether Mr Okwume’s passport should be cancelled, was required to decide if he was satisfied that it was liable to be cancelled because Mr Okwume had given a bogus document (i.e., the passport) to an officer. That required him to reasonably suspect that the passport was a bogus document within s 97 of the Act.
Mr Okwume asked this Court to uphold the decision of the primary judge broadly for the reasons her Honour gave.
In George v Rockett, the High Court considered the meaning of reasonable grounds for suspecting and reasonable grounds for believing. The Court said (at 115-116):
Suspicion, as Lord Devlin said in Hussien v. Chong Fook Kam, “in its ordinary meaning is a state of conjecture of surmise where proof is lacking: ‘I suspect but I cannot prove.’” 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. In Queensland Bacon Pty. Ltd. v. Rees, a question was raised as to whether a payee had reason to suspect that the payer, a debtor, “was unable to pay [its] debts as they became due” as that phrase was used in s. 95(4) of the Bankruptcy Act 1924 (Cth). Kitto J. said (65):
“A suspicion that something exists is more than a mere idle wondering whether it exists or not; it is a positive feeling of actual apprehension or mistrust, amounting to ‘a slight opinion, but without sufficient evidence’, as Chambers’s Dictionary expresses it. Consequently, a reason to suspect that a fact exists is more than a reason to consider or look into the possibility of its existence. The notion which ‘reason to suspect’ expresses in sub-So (4) is, I think, of something which in all the circumstances would create in the mind of a reasonable person in the position of the payee an actual apprehension or fear that the situation of the payer is in actual fact that which the subsection describes - a mistrust of the payer's ability to pay his debts as they become due and of the effect which acceptance of the payment would have as between the payee and the other creditors.”
The objective circumstances sufficient to show a reason to believe something need to point more clearly to the subject matter of the belief, but that is not to say that the objective circumstances must establish on the balance of probabilities that the subject matter in fact occurred or exists: the assent of belief is given on more slender evidence than proof. Belief is an inclination of the mind towards assenting to, rather than rejecting, a proposition and the grounds which can reasonably induce that inclination of the mind may, depending on the circumstances, leave something to surmise or conjecture.
As I have said in addressing the primary judge’s reasons, in Ruddock v Taylor the High Court considered the meaning of “reasonably suspects” in s 189 of the Act and said that the matter is to be judged against what was known or reasonably capable of being known at the relevant time.
The Commonwealth sought to argue from cases such as George v Rockett that a suspicion was a state of conjecture or surmise (an actual apprehension or fear) with some factual basis and that Mr Andersson was entitled to found his suspicion that a document is a bogus document on the opinion of an experienced and qualified document examiner. If that be so, then the particulars of the grounds and the information for the purposes of s 119(1)(a) are no more than the basis of Mr Kriss’ suspicion, being Mr Kriss’ opinion.
I have summarised the primary judge’s approach to this issue above (at [75]). Neither party sought to support her Honour’s statement that Mr Andersson was taken to have made the same assumptions and findings and adopted the same reasoning of Mr Kriss. Both said, in fact, that that proposition was erroneous and Mr Okwume said that, in any event, it was difficult to see how it contributed to the decision. I agree. Neither the basis of the proposition nor its consequences are clear. Neither party sought to support its submission by reference to the doctrine of dictation (i.e., Mr Kriss dictating the outcome to Mr Andersson). Again, I agree that it does not appear to be relevant. In terms of the primary judge’s reasons summarised above (at [75]), that leaves the requirement that Mr Andersson form a reasonable suspicion that the document is a bogus document and the terms of s 119(1)(a) of the Act.
In my opinion, there is no precise correlation between what Mr Andersson must have in his mind in order to form a reasonable suspicion and the particulars and information which must be provided under s 119(1)(a) of the Act. It will all depend on the circumstances, including the nature of the expert opinion. For example, if the expert addresses a particularly arcane matter, then the decision-maker may have no alternative but to rely on his opinion without more. However, that would not mean that he was freed from providing any details of the opinion.
Due to the importance of the particular circumstances, I propose to restrict my observations, as far as possible, to the circumstances of this case.
At a minimum, the decision-maker should know that the expert has addressed the right question and the reasons the document examiner formed the conclusion that the document is bogus or reasonably suspected of being bogus. It is those matters which should be the subject of the notice under s 119(1)(a). It seems to me that, in the present case, the particulars of the grounds for cancelling within s 119(1)(a) are the facts making up the elements of contravention of s 103. For example, that would include when the document was provided and to whom. The information because of which the grounds appear to exist within s 119(1)(a) would include, not only the fact that an expert had formed an opinion, but also a statement (perhaps a broad statement depending on the circumstances) of the reasons for that opinion. Such an approach facilitates the purposes of ss 119 and 120. I agree with the primary judge that the information concerning the laminate on Mr Okwume’s passport should have been the subject of the notice under s 119(1)(a). I do not need to go so far as to say, as the primary judge did, that the facts and matters underlying Mr Kriss’ opinion had to be the subject of notice.
During the hearing of the appeal, the Court asked the parties whether there were any authorities dealing with the requirements of s 119(1)(a) at the time of the events in issue in this case. The Court was referred to Zhao v Minister for Immigration & Multicultural Affairs [2000] FCA 1235 (Zhao) where the Full Court said of s 119 the following (at [25]):
Section 119 requires particulars of the grounds relied upon to be included in the notice. The level of particularity is not specified. It must serve the statutory purpose. That is to say it must be sufficient, when read in conjunction with the supporting information, to fairly inform the visa holder of the basis upon which cancellation is being considered so that the visa holder is adequately equipped to provide such relevant information as may be available and to make such submissions as may be open. The supporting information will include a description of any evidence upon which the grounds are based. The grounds, as particularised, may be inferences from the evidence and in that sense conclusionary. …
(see also Tien v Minister for Immigration and Multicultural Affairs [1998] FCA 1552; (1998) 89 FCR 80 at 92 per Golberg J; Minister for Immigration and Citizenship v Brar [2012] FCAFC 30; (2012) 201 FCR 240 at [57].)
The approach I have taken to s 119 is consistent with the approach taken by the Full Court in Zhao.
Mr Andersson did not comply with s 119(1)(a) because to advise Mr Okwume that he had presented a bogus document at the Airport on 21 July 2005 was not sufficient compliance with the section. He was required to notify Mr Okwume of (at least) the main reason Mr Kriss had reached his opinion and that concerned the laminate on Mr Okwume’s passport.
As part of Ground 4, the Commonwealth submitted that this Court should overturn the unfavourable findings the primary judge made about Mr Kriss’ performance of his examination of Mr Okwume’s passport. It is not necessary to address this aspect of the Commonwealth’s appeal because, as I have said, whether or not Mr Kriss carried out his examination in a reasonable fashion, is not relevant to the jurisdictional error found by her Honour.
I turn now to Ground 1.
It is correct that Mr Okwume did not plead or raise during the trial a failure by Mr Andersson to comply with s 119(1)(a) of the Act and, in fact, such an argument was expressly disclaimed by his counsel.
Mr Okwume advanced two arguments in response to the Commonwealth’s submission.
First, Mr Okwume contended that the Commonwealth bore the onus of proving the lawful justification for his detention. It followed (so Mr Okwume submitted) that it was for the Commonwealth to exclude a failure to comply with s 119(1)(a) and it failed to do that. It is fair to say, however, that the burden of the oral submissions of counsel for Mr Okwume was on the second argument. In fact, at one point in his oral submissions, counsel for Mr Okwume appeared to accept that Mr Okwume should have pleaded the jurisdictional errors found by the primary judge.
I do not think that there is any doubt that it was for the Commonwealth to prove the lawful justification for Mr Okwume’s detention (Trobridge v Hardy [1955] HCA 68; (1955) 94 CLR 147 at 152 per Fullagar J; Watson v Marshall and Cade [1971] HCA 33; (1971) 124 CLR 621 at 626 per Walsh J). However, what was it precisely that the Commonwealth was required to prove? Was it sufficient for the Commonwealth to prove an apparently valid decision to cancel Mr Okwume’s visa and a decision to detain based on that apparently valid decision and then for Mr Okwume to challenge and prove infirmities in the apparently valid decision?
The Commonwealth submitted that if a court declares a decision to have been made in excess or want of jurisdiction, the decision-maker will, in conformity with the rule of law, treat the decision as having no legal force or effect. Although the declaration reveals that the decision always lacked any legal effect, the decision-maker was not required to treat it as lacking legal effect until the Court so declared. The Commonwealth submitted that until the Court makes a declaration that the decision is invalid, there is no legal obligation on the decision-maker to treat the decision as legally ineffective and of no consequence.
In writing, the Commonwealth put its submission as follows:
The Commonwealth discharged its burden by raising s 189 of the Act and proving its officers held a reasonable suspicion that Mr Okwume was an unlawful non-citizen because of the Visa Cancellation Decision. If Mr Okwume had succeeded on any of the grounds on which he attacked that decision (where he carried the burden), the question would have arisen whether any suspicion based on the invalid decision was objectively reasonable. The Commonwealth would then have needed to prove that the officer’s suspicion was objectively reasonable (as occurred in Ruddock v Taylor).
Orally, the Commonwealth’s submission was somewhat bolder. It seemed to suggest that the presumption of validity could be extended to the point that the decision-maker’s suspicion will be reasonable whatever doubts a reasonable person in the officer’s position may have about the efficacy of the decision. I cannot see how that could be if the facts are otherwise, and I reject this submission.
I return then to the submission the Commonwealth put in writing. The Commonwealth referred to Ousley v The Queen [1997] HCA 49; (1997) 192 CLR 69 at [130]-[131] where Gummow J said that an administrative decision is presumed regular until set aside. The Commonwealth recognised the effect of Minister for Immigration & Multicultural Affairs v Bhardwaj [2002] HCA 11; (2002) 209 CLR 597 at, for example, [51] per Gaudron and Gummow JJ, but sought to rely on what Hayne J said in the same case at [151] as follows:
In general, judicial orders of superior courts of record are valid until they are set aside on appeal, even if they are made in excess of jurisdiction. By contrast, administrative acts and decisions are subject to challenge in proceedings where the validity of that act or decision is merely an incident in deciding other issues. If there is no challenge to the validity of an administrative act or decision, whether directly by proceedings for judicial review or collaterally in some other proceeding in which its validity is raised incidentally, the act or decision may be presumed to be valid. But again, that is a presumption which operates, chiefly, in circumstances where there is no challenge to the legal effect of what has been done. Where there is a challenge, the presumption may serve only to identify and emphasise the need for proof of some invalidating feature before a conclusion of invalidity may be reached. It is not a presumption which may be understood as affording all administrative acts and decisions validity and binding effect until they are set aside. …
(Emphasis added, citations omitted.)
The Commonwealth also relied on the following passages in the reasons for judgment of Moore and Lander JJ in Lansen v Minister for Environment and Heritage [2008] FCAFC 189; (2008) 174 FCR 14 at [164]-[165]:
It would seem that the Full Court was referring to that dicta in Jadwan 145 FCR 1. The courts have always recognised that a decision made by an administrative decision-maker which is ultra vires the power reposing in the decision-maker lacks any legal effectiveness. It was often said that the decision was a nullity or void, although these descriptions are neither necessary nor helpful: Bhardwaj 209 CLR 597 at 613. If the Court declares a decision to have been made in excess or want of jurisdiction, the decision-maker will in conformity with the rule of law treat the decision as having no legal force or effect. Although the decision always lacked any legal effect, the decision-maker was not required to treat it so until the Court so declared. There was no legal obligation on the decision-maker to treat an ultra vires decision as legally ineffective and of no consequence.
In other words, even though a decision infected by jurisdictional error was always of no legal effect, a person affected by the decision could not compel the decision-maker to so treat the decision without the Court’s declaration. In a practical sense, therefore, a person who claims that a decision has no legal effect will usually need the Court’s assistance to require the decision-maker to so treat the decision. But simply because the Court’s assistance is required does not make the decision any more effective.
I accept the Commonwealth’s submission that, at least for the purposes of proof, it is for Mr Okwume to identify in his pleading and prove the invalidity of the cancellation decision. This is to be distinguished from proof of a reasonable suspicion within s 189 of the Act where the onus is on (and remains on) the Commonwealth.
Mr Okwume’s second argument in response to the Commonwealth’s procedural fairness complaint is that the facts are beyond controversy and, in those circumstances, it is open to this Court to hear and determine what is, in effect, a legal argument. He referred to O’Brien v Komesaroff [1982] HCA 33; (1982) 150 CLR 310 in which Mason J (as his Honour then was) said (at 319):
In some cases when a question of law is raised for the first time in an ultimate court of appeal, as for example upon the construction of a document, or upon facts either admitted or proved beyond controversy, it is expedient in the interests of justice that the question should be argued and decided (Connecticut Fire Insurance Co. v. Kavanagh; Suttor v. Gundowda Pty. Ltd.; Green v. Sommerville). However, this is not such a case. The facts are not admitted nor are they beyond controversy.
The consequence is that the appellants' case fails at the threshold. They cannot argue this point on appeal; it was not pleaded by them nor was it made an issue by the conduct of the parties at the trial.
(Citations omitted.)
(see also Suttor v Gundowda Pty Ltd [1950] HCA 35; (1950) 81 CLR 418 at 438 per Latham CJ, Williams and Fullagar JJ; Green v Sommerville [1979] HCA 60; (1979) 141 CLR 594 at 607-608 per Mason J.)The Commonwealth submitted in writing that, had it been on notice of the alleged argument, it could have led evidence at trial. However, it never identified in a convincing fashion the evidence that might have been adduced. The Commonwealth alluded to the fact that under s 119 information may be provided orally, but there is no suggestion that Mr Andersson orally provided information to Mr Okwume that is not recorded in the forms which Mr Andersson completed. The Commonwealth submitted that the ultimate task in connection with the alleged argument is one of evaluation, rather than the determination of a legal issue. That may be true to a point, but it does not alter the critical circumstance that the facts are beyond controversy.
I have decided that Mr Okwume’s submission should be accepted. Mr Andersson had no independent recollection of events and I think the primary judge was correct to conclude that there was no oral evidence that Mr Andersson or, indeed, anybody else could give to rebut the inferences available to be drawn from the documentary evidence considered as a whole (at [180]). Furthermore, as counsel for Mr Okwume put on the appeal, if there was a failure to accord procedural fairness before the primary judge (in terms of hearing argument from the Commonwealth as distinct from the opportunity to adduce evidence), it can and is cured by the Commonwealth’s ability to address the issue on the appeal. I emphasise that it is critical to my conclusion that the relevant facts are beyond controversy (Coulton v Holcombe [1986] HCA 33; (1986) 162 CLR 1 at 7‑8).
I reject Grounds 1 and 4 of the Notice of Appeal. The primary judge was correct to conclude that Mr Andersson failed to comply with s 119(1)(a) in making his decision to cancel Mr Okwume’s visa and that that failure was a jurisdictional error.
The jurisdictional error based on Mr Andersson failing to bring an independent mind to the decision to cancel Mr Okwume’s visa (Grounds 2 and 5)
As I have said, the primary judge found that Mr Andersson embarked on the decision-making process on the pre-determined footing that grounds for cancellation existed. Her Honour found that he was acting in accordance with a perceived responsibility to act in accordance with the preferences of his Duty Manager, Ms O’Connell. Her Honour described that error as allowing an extraneous circumstance to interfere with his function or a denial of procedural fairness in foreclosing his mind to the matters which he was required to consider.
I would have been disposed to characterise the error as found by the primary judge as acting at the dictation of another. Neither party paused on the precise characterisation of the error in administrative law terms. The critical matter is the primary judge’s finding as to the error and that was that Mr Andersson had embarked on the decision-making process on the pre‑determined footing to cancel the visa. Such an error, if established, is a jurisdictional error.
The Commonwealth contends that it was denied procedural fairness in relation to this alleged error which was not pleaded or put to Mr Andersson in cross-examination or otherwise raised by Mr Okwume during the trial (Ground 2). It also contends that, in any event, the finding was erroneous on the evidence.
In response to the Commonwealth’s procedural fairness argument, Mr Okwume relied on the same two arguments he relied on in relation to the first jurisdictional error (at [106] and [114]) above. I have already given my reasons for rejecting the first argument.
The primary Judge found that Ms Trad’s consideration of Mr Okwume’s circumstances had not been affected by the matters which made ineffective the actions of Mr Andersson and Ms O’Connell under s 189 of the Migration Act 1958 (Cth). That was because there had been nothing in the information conveyed to her concerning Mr Okwume which had, or ought to have, put her on notice as to the existence of irregularities affecting the visa cancellation. The Judge concluded:
[Ms Trad] was entitled to proceed on the assumption (albeit mistaken) that the decision was legally effective. It follows that Ms Trad was lawfully justified in detaining Mr Okwume pursuant to s 189 of the Act by causing him to be escorted by GSL personnel from the airport to Baxter on 22 July 2005 and to be held in immigration detention there.
In reasoning in this way, it is apparent that the primary Judge adopted as an assumption that Ms Trad had herself detained Mr Okwume pursuant to s 189 of the Migration Act. Her Honour’s finding was that Ms Trad had been “lawfully justified” in doing so. The Judge did not address the antecedent question of whether Ms Trad had in fact detained Mr Okwume pursuant to s 189 or otherwise. It is that question which is the subject of the first two grounds in Mr Okwume’s amended notice of appeal. The third ground concerns the assessment of damages.
Background
The relevant sequence of events for the purposes of Mr Okwume’s appeal commenced at 2.55 pm on 21 July 2005. It was at that time that Mr Andersson informed Mr Okwume that he was detained under s 189 of the Migration Act as an unlawful non‑citizen.
On the Judge’s findings, at [65], Mr Okwume was already in immigration detention at 2.55 pm, as he had been detained by Mr Andersson pursuant to s 189 at 12.55 pm that same day on the basis of his non‑compliance with s 166. Further, at 1 pm, Departmental officers had contacted GSL Australia Pty Ltd (GSL) with a request that they take Mr Okwume to Airport 85 to be detained overnight. The Judge found that at that time GSL provided services to the Department in relation to those taken into immigration detention. The Departmental record showed that in response to the request for services, GSL personnel attended at Brisbane Airport at 1.45 pm. It seems, however, that they did not assume responsibility for Mr Okwume at that stage.
At some stage before 5.15 pm, Ms O’Connell signed a two page “Request for Services Form” addressed to GSL. It is apparent that this was a Departmental form capable for use for the variety of purposes for which the Department may request services by GSL. Under the heading “Requested Action”, Ms O’Connell stated:
You are requested to detain the following person on the basis that they are an unlawful non‑citizen.
The document then gave details concerning Mr Okwume and continued:
I am requesting you, or another Detention Services employee who is also an officer under section 5 of the Migration Act 1958, to:
þCollect located detainee from: Brisbane International Airport – Level 2
þAdmit and hold in detention (place): Airport 85 Motel
o Transfer detainee to:
o Escort detainee to (location):
…
(Bold font in the original)
It is not necessary to set out the remaining alternatives available to Ms O’Connell. She did not tick the boxes for any of those alternatives.
An entry on this document shows that it was faxed at 5.15 pm. A facsimile transmission report with respect to the same document shows that it was also sent by facsimile at 5.32 pm. The evidence did not indicate whether these were in fact the same transmission nor whether they were to the same addressee. It was not suggested that anything turned on this difference in transmission times.
At 5.45 pm, Mr Okwume departed the Airport in the custody of the GSL officers.
Just before his departure (and seemingly unrelated to the timing of that departure), Mr Andersson at 5.39 pm sent an email to 10 persons, including Ms Trad, with the subject heading “Detention Report”. Mr Andersson referred in the email to Mr Okwume having been refused entry earlier that day at Brisbane Airport. He described him as a person who had presented a passport “which was later identified by the Document Examiner as not a genuine issued Nigerian PPT”. His email continued:
S/c 456 Visa, canx under s 116(1)(d) S103 bogus documentation given. A/n claimed protection at interview and was screened in by the delegate of Onshore Protection Unit.
A/n is to remain in detention overnight at Airport 85 and arrangements currently underway to transfer him to Baxter.
Pls find attached the Detention Report which has been saved as case note in ICSE. Referral ID is …
(Emphasis added)
In fact, Mr Andersson did not attach the Detention Report. That was provided by an email apparently emanating from Ms Trad at 6.01 pm. The evidence did not identify the author of the Detention Report. Its contents included the following:
Visa status and immigration history Unlawful Non‑Citizen – s 189(2) MA – S/C 456 Visa canx under s 116(1)(d) on the grounds A/n presented a bogus document. … Circumstances of unlawful status (evidence and reasons why consider person is unlawful) Attempted to enter Australia on bogus document at BIAP on 21/07/05. Visa cancelled under section 116(1)(d) on 21/07/05. … Visa or detention options explored (why Bv or other visas not eligible and why needs to be detained) Ineligible for Border visa grant. A/n screened in by the delegate of Onshore Protection Unit. A/n to be transferred to Baxter. Detention/Removal Plan
(Length of detention, place of detention, eg Ppt. held ready for immediate removal or requires transfer to interstate IDF alternative detention options explored)Pax is protection claimant. A/n to remain in detention overnight at Airport 85; arrangements are underway to transfer A/n to Baxter on Friday 22 Jul05.
In effect, the Detention Report recorded details relating to Mr Okwume and his detention. In particular, it informed the addressees that Mr Okwume was in detention and gave a short statement of the basis for that detention. It said that he was being held at Airport 85 Motel overnight and that arrangements were underway to transfer him to the Baxter Detention Centre (Baxter) on the following day.
On the evidence at trial, this was the only “Detention Report” prepared in relation to Mr Okwume. It is apparent that it was not prepared by Ms Trad.
Mr Callaghan sent a further email concerning Mr Okwume at 8.14 pm on 21 July 2005. Ms Trad was one of five recipients of this email. In the email, Mr Callaghan said:
All
Below message contains the detention report for Livinus OKWUME.
Following discussions with J Toohey and Helen Dell arrangements have been made for Okwume to be transferred to Baxter tomorrow, 22 July.
We have been unable to contact O’Connor Airways to request uplift approval so the two GSL escorts will drive from Adelaide to Baxter. Qantas have approved uplift for the Brisbane Adelaide flight which arrives in Adelaide at 10.30 am.
The fraudulent Nigerian passport used by Okwume has been retained by Ben Kriss the Document Examiner at BAP.
Lyn Trad will send copies of the custody docs to Baxter later tonight
Do let me know if this information covers all your needs
(Emphasis added)
Relevantly, this email informed its recipients that arrangements had been made for Mr Okwume’s transfer to Baxter on 22 July.
At 10.06 pm on 21 July, Ms Trad sent another “Request for Services Form” to GSL concerning Mr Okwume. On the evidence, apart from the email at 6.10 pm, the sending of this request was the first act by way of positive intervention by Ms Trad in relation to Mr Okwume. Ms Trad made the request using the same printed form as had been used by Ms O’Connell earlier. It stated (relevantly):
You are requested to detain the following person on the basis that they are an unlawful non‑citizen.
…
I am requesting you, or another Detention Services employee who is also an officer under section 5 of the Migration Act 1958 to:
þCollect located detainee from: Airport 85 Motel,
oAdmit and hold in detention (place):
þTransfer detainee to: Baxter Immigration Detention Centre
þEscort detainee to (location): Baxter Immigration Detention Centre, South Australia.
...
Whereas Ms O’Connell’s request had related to the movement of Mr Okwume from Brisbane Airport to the Airport 85 Motel, this request related to the movement of Mr Okwume from the Motel to Baxter.
A second facsimile transmission report shows that this document was sent again at 10.29 pm to the same recipient. The circumstances in which that occurred were not explained in the evidence.
Both facsimile transmission reports show that four pages were sent with the requested services form. The evidence did not identify the four pages but it can be inferred that two of them were documents which, it was common ground, had also been prepared and signed by Ms Trad. The full text of the first is set out in the reasons of Besanko J at [150].
The second document was as follows:
Both these documents are shown as having been prepared on “Form 847”. This appears to be a general purpose Departmental Form without any prescribed content or regulatory status. It also appears that Ms Trad was able to select for herself the content to be included in the form for its different uses and that, for that purpose, she used Departmental templates which contemplated the selection of alternatives. Having made use of those templates, Ms Trad marked or completed only the alternative which she thought applicable. Both documents are marked as having been “FAXED” on 21 July 2005.
The inference that the document headed “Direction to Accompany and Restrain” was sent after 8.14 pm is confirmed by its final paragraph by which Ms Trad directed that the transfer from Adelaide to Baxter be by vehicle. This was the information which Mr Callaghan had communicated to the five Immigration Officers in his email at 8.14 pm.
On the morning of 22 July 2005, Ms Trad prepared a handwritten file note. It appears to be in the nature of a “handover note” to another immigration officer. Ms Trad recorded that Mr Okwume was to be transferred to Baxter, being transported there by plane and car, and continued:
Detention docs with GSL; also request for services. Copies faxed to GSL Villawood and Baxter.
Detention advice sent to appropriate recipients.
Email to Baxter re details of transfer.
The Judge was satisfied that Mr Okwume did depart Brisbane in the custody of GSL personnel, acting under Ms Trad’s instructions, at 8.15 am on 22 July 2005.
As already noted, the primary Judge found that Ms Trad did not know, and could not reasonably have known, any matters which would have put a reasonable officer in her position on notice that the visa cancellation decision was irregular or ineffective, at [185]. That being so, Ms Trad had been entitled to proceed on the assumption, although mistaken, that the visa cancellation decision was legally effective. The Judge concluded that that in turn meant that Ms Trad had been “lawfully justified” in detaining Mr Okwume pursuant to s 189 of the Migration Act by causing him to be escorted by GSL personnel from the Airport to Baxter and to be held in immigration detention there, at [185].
Consideration
There was some divergence between Mr Okwume’s written outline of argument on the appeal and the first two grounds stated in his amended notice of appeal and, again, some divergence between the written outline of argument and the oral submissions. The contentions on which I understood Mr Okwume to rely ultimately were those stated by senior counsel in the oral argument. Senior counsel contended that, in the actions relied upon by the Commonwealth, Ms Trad had not effected a detention of Mr Okwume under s 189. Instead, she had been acting under s 196, or perhaps s 189, to implement the detention effected by Mr Andersson at 2.55 pm on 21 July 2005.
Senior counsel’s alternative submission was that, if Ms Trad has effected a detention of Mr Okwume under s 189, the Commonwealth had not established that she had known or reasonably suspected that Mr Okwume was an unlawful non‑citizen.
It was common ground that the Commonwealth had the onus at trial of justifying the legality of the detention of Mr Okwume.
Section 189 of the Migration Act provides (relevantly):
(1)If an officer knows or reasonably suspects that a person in the migration zone (other than an excised offshore place) is an unlawful non‑citizen, the officer must detain the person.
…
Section 196 provides (relevantly):
196 Duration of detention
(1)An unlawful non‑citizen detained under section 189 must be kept in immigration detention until:
(a) he or she is removed from Australia under section 198 or 199; or
(aa)an officer begins to deal with the non‑citizen under subsection 198AD(3); or
(b) he or she is deported under section 200; or
(c) he or she is granted a visa.
(2)To avoid doubt, subsection (1) does not prevent the release from immigration detention of a citizen or a lawful non‑citizen.
(3)To avoid doubt, subsection (1) prevents the release, even by a court, of an unlawful non‑citizen from detention (otherwise than as referred to in paragraph (1)(a), (aa) or (b)) unless the non‑citizen has been granted a visa.
…
The term “detain” is defined in s 5(1) of the Migration Act:
detain means:
(a) take into immigration detention; or
(b) keep, or cause to be kept, in immigration detention;
and includes taking such action and using such force as are reasonably necessary to do so.
Note:This definition extends to persons covered by residence determinations (see section 197AC).
The term “immigration detention” used in s 196 and in the definition of “detain” is defined in s 5(1):
immigration detention means:
(a) being in the company of, and restrained by:
(i) an officer; or
(ii)in relation to a particular detainee—another person directed by the Secretary or Australian Border Force Commissioner to accompany and restrain the detainee; or
(b) being held by, or on behalf of, an officer:
(i) in a detention centre established under this Act; or
(ii)in a prison or remand centre of the Commonwealth, a State or a Territory; or
(iii) in a police station or watch house; or
(iv)in relation to a non‑citizen who is prevented, under section 249, from leaving a vessel—on that vessel; or
(v) in another place approved by the Minister in writing;
but does not include being restrained as described in subsection 245F(8A), or being dealt with under paragraph 245F(9)(b).
Note 1:Subsection 198AD(11) provides that being dealt with under subsection 198AD(3) does not amount to immigration detention.
Note 2:This definition extends to persons covered by residence determinations (see section 197AC).
A number of features of the operation of s 189 were discussed by the Full Court in Commonwealth v Fernando [2012] FCAFC 18; (2012) 200 FCR 1. It is not necessary, however, for the resolution of this appeal to refer to the reasons in Fernando in any detail.
Section 189(1) operates to impose a positive obligation on an “officer” to take into immigration detention a person in the migration zone who the officer knows or reasonably suspects is an unlawful non‑citizen, and then to keep, or cause to be kept, the person in detention. The effect of s 196(1) is that (subject to the operation of ss 190 and 191) an unlawful non‑citizen detained under s 189 must be kept in immigration detention until one or other of four specified events occurs. That is to say, the detained unlawful non‑citizen must be kept in the company of, and restrained by, one or other of the persons mentioned in subpara (a) of the definition of immigration detention or be held by, or, on behalf of, an officer in one or other of the places specified in subpara (b) of the definition.
Whereas the subject matter of s 189 is the imposition of an obligation on an officer to take known or reasonably suspected unlawful non‑citizens into detention, and to keep them there, the subject matter of s 196, at least primarily, is directed to the duration of the detention: Al‑Kateb v Godwin [2004] HCA 37; (2004) 219 CLR 562 at [11] (Gleeson CJ), [112] (Gummow J), and [224] (Hayne J). Perhaps for this reason, s 196 does not identify the persons who must give effect to the obligation, it being implicit that it is those who have detained the unlawful non‑citizen or those whom the detaining officer has caused to detain the person.
Given the definition of “immigration detention”, the subject matter of s 196(1) extends also to aspects of the manner and location of the detention.
Read together, ss 189 and 196 require the initial detaining of a known or reasonably suspected unlawful non‑citizen and the continuation of that detention until one of the events specified in s 196(1) has occurred. As seen earlier, an officer may detain a person under s 189 either by taking the person into immigration detention or by keeping or causing the person to be kept in immigration detention. In respect of this feature of the legislation, the Full Court said in Fernando at [72]:
[Section] 189(1) also required other officers to keep the person detained, or cause him or her to be kept in immigration detention when they had one of the requisite states of mind. It follows that an officer with the necessary state of mind could detain a person by causing him or her to be kept in immigration detention because the first officer caused another officer to take the person into immigration detention and then keep the detainee there.
Some of the submissions of senior counsel for Mr Okwume were to the effect that the “scheme” of ss 189 and 196 contemplated only a single detention pursuant to s 189. On that basis, there could not be a second independent detention pursuant to s 189 while a person remained so detained. The Commonwealth disputed the correctness of that understanding of the “scheme” and contended that s 189 permitted a detention to be effected by more than one immigration officer. In my view, it is not necessary to express a view on this question, as Mr Okwume’s appeal can be determined on the construction advanced by the Commonwealth. On that construction, there remains the question of whether there had been a later detention of Mr Okwume by Ms Trad.
On my understanding, the obligations imposed by ss 189 and 196 allow for at least these possibilities:
(1)an officer with the requisite state of mind may detain an unlawful non‑citizen;
(2)an officer with the requisite state of mind may keep, or cause another to keep, the unlawful non‑citizen detained; and
(3)an officer, caused to do so by another, may keep a detained unlawful non‑citizen in detention. Such an officer need not have the requisite state of mind.
Each of these alternatives seems to involve implicitly the officer making decisions as to the location of the detention which conform with subpara (b) of the definition of immigration detention and decisions concerning the transfer of the detainee to the location.
The character of Ms Trad’s actions should be assessed having regard to these possibilities.
Unlike the circumstances considered in Ruddock v Taylor (2005) HCA 48; (2005) 222 CLR 612, the Commonwealth did not adduce any evidence at trial from Ms Trad. This meant that inferences as to the character of her actions and of her state of mind have to be drawn from the documents, to the extent that that is possible: Sadiqi v Commonwealth (No 2) [2009] FCA 1117; (2009) 181 FCR 1 at [139].
Senior counsel for Mr Okwume submitted that a number of circumstances indicated that Ms Trad had not effected a detention under s 189. Instead, her actions on 21 and 22 July 2005 were to be understood as giving effect to the earlier detention of Mr Okwume by Mr Andersson and/or Ms O’Connell or, alternatively, giving effect to the obligation imposed by s 196(1), that is, the third of the possibilities identified earlier.
Counsel noted first that it had not been necessary for Ms Trad to effect a new detention under s 189 in order to have Mr Okwume detained at the motel overnight and then taken on 22 July 2005 to Baxter. As contemplated by the passage in Fernando quoted earlier, one means by which an officer may discharge the obligation imposed by s 189 is to cause another person to keep the detainee in an authorised location and to accompany the detainee until he or she reaches that location. This meant in the present circumstances (counsel submitted) that Ms Trad could not be understood as necessarily having effected a detention under s 189(1). She could instead be understood as having acted at relevant times to give effect to the detention by Mr Andersson. Counsel noted in this respect that, before going off shift, Mr Andersson had, by his email at 5.39 pm on 21 July, informed various immigration officers of his detention of Mr Okwume, that Mr Okwume was to remain in detention overnight at Airport 85, and that he was then to be transferred to Baxter.
Alternatively, counsel submitted, Ms Trad could be understood to have been discharging the responsibility imposed by s 196(1). In doing so, her position was no different from the many other officers who had acted in some way to effect Mr Okwume’s detention, including the GSL officers who had accompanied him at the Airport Motel and then escorted him to Baxter, and the manager of Baxter.
In either circumstance, counsel submitted, Ms Trad’s involvement was directed to the implementation of the detention effected by Mr Andersson at 2.55 pm on 21 July 2005. That meant that she need not have formed either of the states of mind required by s 189.
The Commonwealth’s submissions emphasised the words “I now direct you to accompany and restrain Livinus Okwume and thereby detain him in immigration detention” contained in Ms Trad’s “Direction to Accompany and Restrain”. It submitted that that direction was to be understood as a freestanding direction for the detention of Mr Okwume.
Counsel for Mr Okwume submitted that, properly understood, the document did not have the effect for which the Commonwealth contended. In particular, he submitted that the passage relied upon by the Commonwealth had to be read in full and understood in its context. Counsel noted in this respect that the sentence upon which the Commonwealth relied continued “[u]ntil 22 July 2005 when he is transferred from Airport 85 Motel in Brisbane to Baxter Immigration Detention Centre, South Australia”. That is, Ms Trad’s direction to the GSL officers related to the detention of Mr Okwume for a finite period and place.
Counsel also noted the absence of any express reference to s 189 in the Direction to Accompany and Restrain and the manner of expression which Ms Trad used. In particular, counsel referred to Ms Trad’s statement that Mr Okwume is “known or reasonably suspected to be … an unlawful non‑citizen”. He submitted that both Ms Trad’s use of the passive voice and the reference to two different states of mind were suggestive of Ms Trad referring to the states of mind of others. Had Ms Trad been describing her own state of mind, it is much more likely that she would have said positively either that she knew that Mr Okwume was an unlawful non‑citizen or that she suspected on reasonable grounds that he was such a person.
Counsel also submitted that regard had to be had to an important element of context, namely, that to the knowledge of both Ms Trad and the GSL officers to whom the form was directed, Mr Okwume was already in immigration detention. This was made explicit by the “Transfer of Custody” which Ms Trad provided to GSL at the same time as the Direction to Accompany and Restrain, in which she stated expressly “You currently hold Livinus OKWUME (‘the detainee’) in lawful immigration detention under the Act”. In these circumstances, it is improbable, counsel submitted, that Ms Trad would have thought it necessary to exercise again the obligation imposed by s 189.
In my opinion, the submissions of senior counsel for Mr Okwume have considerable force and should be accepted. Mr Andersson’s email of 5.39 pm on 21 July appears to be in the nature of a “hand over” document, by which he was informing others of the detention of Mr Okwume and that arrangements were underway as to the means by which he was to be held in detention. The documents in evidence did not disclose what discussions or directions had been given within the Department with respect to those arrangements (although Mr Callaghan’s email at 8.14 pm suggests that J Toohey and Ms Dell were involved). In context (it appearing that Mr Andersson was going off‑shift), it seems that Mr Andersson was, in the terminology of the definition of “detain”, causing others to take the further necessary action to keep Mr Okwume in detention.
I also consider it pertinent that the Direction to Accompany and Restrain was for a finite period only. A detention specified to be of limited duration is not the form of detention contemplated by ss 189 and 190. At the least, it would be an unusual form of detention given that the detention’s duration is governed by s 196(1). In my opinion, the fact that Ms Trad’s direction was for detention for a finite period only makes it natural to understand it as a direction giving effect to the detention earlier made by Mr Andersson.
The title selected by Ms Trad for the document also seems pertinent. It was not a direction to detain. In context, the document appears to be more in the nature of an authority to GSL for the action required of it in relation to Mr Okwume that a document effecting, in a primary way, his detention.
It may also be pertinent that the evidence at trial did not include any documents which may have been consequential upon a detention by Ms Trad, had that occurred. There were, for example, no documents similar to those which followed the detention by Mr Andersson. In particular, Ms Trad did not record her action in a running sheet or prepare a further detention report. However, the significance of these matters is unclear as there was no evidence led at trial of the Departmental practices or requirements in relation to the making of records of this kind.
Next, I consider it pertinent that the focus of Ms Trad’s actions was on the “transfer” of Mr Okwume to Baxter. That is to say, the focus of Ms Trad’s interventions seems to have concerned the place at which Mr Okwume was to be held, rather than his detention per se.
All these matters suggest, or at least are consistent with, Ms Trad having entered the mark against the unlawful non‑citizen alternative in the Direction to Accompany and Restrain as a record of her understanding of the basis for the earlier detention of Mr Okwume pursuant to s 189 and on which GSL was to act.
In these circumstances, I do not consider that it can be inferred that Ms Trad was acting pursuant to s 189 to effect a fresh detention of Mr Okwume. At the least, the matters to which counsel for Mr Okwume referred indicate that the Court cannot be satisfied on the evidence presented at the trial that Ms Trad was effecting a separate detention of Mr Okwume under s 189. It is at least equally plausible that she was acting to implement in a practical way the detention effected earlier by Mr Andersson without herself forming the state of mind required by s 189. That being so, the Commonwealth should have been held not to have discharged the onus lying on it in respect of its reliance upon Ms Trad’s action.
The alternative submission on Mr Okwume’s behalf was that, if Ms Trad was the detainer, the Commonwealth had not established that she had had the requisite state of mind required by s 189. Counsel based this submission on the following passage in Fernando:
[84]The Commonwealth’s argument did not exhaust or exclude the application of s 189(1) to the persons who actually took Mr Fernando into immigration detention. The individual who physically takes a person into immigration detention must have at that time one of the two states of mind prescribed by s 189(1) so as to justify him or her in the act of depriving or interfering with the liberty of another … It is not enough for the actual person effecting that deprivation or interference to think that someone else knows or believes the detainee is an unlawful non-citizen. …
(Citation omitted)
Counsel acknowledged that there may be some difficulties with this passage. That being so, and because it is not necessary in the view I take of the matter to express a conclusion regarding the alternative submission, I will refrain from doing so.
Conclusion
The result is that I would uphold Mr Okwume’s appeal. It also means that the Judge’s assessment of Mr Okwume’s damages should be set aside and those damages reassessed. That makes it unnecessary to consider Ground 3 in Mr Okwume’s amended notice of appeal. This Court is not in a position to make the assessment of damages. Amongst other things, it has not been provided with the evidence presented at trial bearing upon the assessment for the period of unlawful detention of 255 days. Nor did the Court hear submissions as to the effect of Fernando v Commonwealth [2014] FCAFC 181; (2014) 231 FCR 251.
That being so, I would make the following orders:
(1)The appeal by the Commonwealth is dismissed.
(2)The appeal by Mr Okwume is allowed.
(3)The matter is remitted to the primary Judge for assessment of Mr Okwume’s damages.
I certify that the preceding sixty-two (62) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice White. Associate:
Dated: 4 May 2018
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