Guo v Commonwealth of Australia - [2017] FCA 1355

FEDERAL COURT OF AUSTRALIA
Guo v Commonwealth of Australia [2017] FCA 1355

File number(s): NSD 1142 of 2015

Judge(s): JAGOT J

Date of judgment: 24 November 2017

Catchwords:
MIGRATION – visa application – refusal of permanent visa on character grounds – defective notifications – temporary entry permit still in force resulting in periods of unlawful detention of a lawful non-citizen – whether detaining officers held reasonable suspicion that detained person was an illegal non-citizen

TORTS – false imprisonment – detention under s 189 of the Migration Act 1958 (Cth) – whether detaining officers held reasonable suspicion that detained person was an illegal non-citizen – whether lawful justification for actions

DAMAGES – nominal damages – appellant would have been lawfully detained as an unlawful non-citizen if notices not defective

DAMAGES – exemplary damages – period of unlawful detention known to Commonwealth – appellant detained unlawfully – exemplary damages awarded for purpose of punishment and deterrence

Legislation:
Administrative Appeals Tribunal Act 1975 (Cth) s 29

Migration Act 1958 (Cth) ss 5, 13, 14, 15, 37, 66, 189, 194, 195, 196, 500, 501, 501E

Migration Legislation Amendment (Strengthening of Provisions relating to Character and Conduct) Act 1998 (Cth) s 32

Migration (1993) Regulations 1992 (Cth) Sch 3, rr 2.8

Migration Regulations 1994 (Cth) Sch 2

Civil Liability Act 2002 (NSW) ss 3B, 5, 26A

Cases cited:
Al-Kateb v Godwin [2004] HCA 37; (2004) 219 CLR 562

Cassell & Co Ltd v Broome [1972] AC 1027

Chan Ta Srey v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1292; (2003) 134 FCR 308

Commonwealth of Australia v Fernando [2012] FCAFC 18; (2012) 200 FCR 1

CPCF v Minister for Immigration and Border Protection [2015] HCA 1; (2015) 255 CLR 514

Fernando v Commonwealth [2014] FCAFC 181, (2014) 231 FCR 251

Fernando v Commonwealth (No 5) [2013] FCA 901

George v Rocket (1990) 170 CLR 104

Goldie v Commonwealth of Australia [2002] FCA 433; (2002) 117 FCR 566

Gray v Motor Accident Commission [1998] HCA 70; (1998) 196 CLR 1

Guo and Minister for Immigration and Multicultural and Indigenous Affairs [2004] AATA 729

Guo v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1585

Houda v New South Wales [2005] NSWSC 1053

Hyder v Commonwealth of Australia [2012] NSWCA 336; (2012) 217 A Crim R 571

Kostopoulos v Commonwealth of Australia [2012] NSWSC 1534

Maritime Union of Australia v Minister for Infrastructure and Regional Development [2015] FCAFC 187

Minister for Immigration and Multicultural and Indigenous Affairs v VFAD [2002] FCAFC 390; (2002) 125 FCR 249

Minister for Immigration and Citizenship v SZIZO [2009] HCA 37; (2009) 238 CLR 627

Nye v New South Wales [2003] NSWSC 1212

Okwume v Commonwealth [2016] FCA 1252

Plaintiff M168/10 v The Commonwealth of Australia [2011] HCA 25; (2011) 279 ALR 1

Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355

R (Kambadzi) v Secretary of State for the Home Department [2011] 1 WLR 1299

Re Woolley; Ex parte Applicants M276/2003 (2004) 225 CLR 1; [2004] HCA 49

Regina (Lumba) v Secretary of State for the Home Department [2012] 1 AC 245

Ruddock v Taylor [2005] HCA 48; (2005) 222 CLR 612

Ruddock v Taylor (2003) 58 NSWLR 269; [2003] NSWCA 262

Spautz v Butterworth (1996) 41 NSWLR 1

State of New South Wales v Riley [2003] NSWCA 208; (2003) 57 NSWLR 496

SZOFE v Minister for Immigration and Citizenship [2010] FCAFC 79; (2010) 185 FCR 129

Thompson v Commissioner of Police of the Metropolis [1998] QB 498

Uren v John Fairfax & Sons Pty Limited (1966) 117 CLR 118

VHAF v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 1243

Whitfield v De Lauret and Company Limited (1920) 29 CLR 71

Date of hearing: 27, 28, 29, 31 March 2017, 11 August 2017

Registry: New South Wales

Division: General Division

National Practice Area: Administrative and Constitutional Law and Human Rights

Category: Catchwords

Number of paragraphs: 264

Counsel for the Applicant: G Kennett SC and BD Kaplan

Solicitor for the Applicant: Ren Zhou Lawyers

Counsel for the Respondent: G Johnson SC and P Knowles

Solicitor for the Respondent: Maddocks Lawyers

ORDERS

NSD 1142 of 2015

BETWEEN:
QI GUANG GUO

Applicant

AND:
COMMONWEALTH OF AUSTRALIA

Respondent

JUDGE:

JAGOT J

DATE OF ORDER:

24 NOVEMBER 2017

THE COURT ORDERS THAT:
1.The parties notify the Court within seven (7) days whether they wish to make further submissions about the Civil Liability Act 2002 (NSW) and:
(a)if not, file and serve proposed orders reflecting these reasons for judgment including as to costs; and
(b)if so, file and serve proposed orders for the future conduct of the matter.

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

REASONS FOR JUDGMENT
JAGOT J:
1. The issues

The applicant, Mr Guo, sues the Commonwealth of Australia for damages for false imprisonment. Mr Guo’s principal claims relate to the periods from 29 February 2012 to 26 September 2014 and from 3 December 2014 to 6 March 2015 during which he was held in immigration detention when he in fact held a visa in the form of a temporary entry permit.
The Commonwealth admits that it falsely detained Mr Guo during each of the periods. In short, the Commonwealth wrongly believed that Mr Guo’s temporary entry permit had ceased so that he was an unlawful non-citizen required to be taken into and held in immigration detention. For the purpose of this proceeding the Commonwealth admits that Mr Guo’s temporary entry permit subsisted at all times before 6 March 2015 so that he was not an unlawful non-citizen at or during the times he was detained. The Commonwealth contends, however, that it is not liable for the tort of false imprisonment because it has proved lawful justification for the actions of its officers. The Commonwealth contends, in the alternative, that if is liable for the tort of false imprisonment, Mr Guo has not suffered any loss or damage as a result and thus should be awarded no more than nominal damages.
I have decided that Mr Guo was falsely imprisoned by the Commonwealth but that he is entitled to only nominal damages apart from in respect of one period (the evening of 5 March 2015 to the afternoon of 6 March 2015) where exemplary damages in the sum of $35,000 should be ordered.
My reasons follow.
2. Facts
Most of the primary facts are uncontentious.
Mr Guo was born in China in 1957. He first came to Australia in 1988 on a student visa. In June 1991 Mr Guo applied for and was thereafter granted a Class 437 (Temporary) entry permit. The grant was made on humanitarian grounds associated with the protests in Tiananmen Square in Beijing in 1989.
It is common ground that, as identified in the submissions for Mr Guo:
11.On or about 30 June 1994, Mr Guo made a valid application for a Class 815 (PRC (permanent) entry permit) (permanent entry permit). At the time, the Migration (1993) Regulations 1992 (Cth) (1993 Regulations) were in force. Clause 437.711(2) of Sch 3 to the 1993 Regulations operated so that Mr Guo’s application for a permanent entry permit was taken also to be an application for a further temporary entry permit.
12.On or about 1 July 1994, the then Minister for Immigration and Ethnic Affairs (Minister) granted a further temporary entry permit to Mr Guo. By reason of cl 437.52(a) of Sch 3 to the 1993 Regulations, that permit was valid and had effect from the time that it was granted until the following events took place:
a)a decision was made on Mr Guo’s application for a permanent entry permit; and
b)Mr Guo was notified of that decision in accordance with reg 2.8 of the 1993 Regulations.
Section 66 of the Act identified what such a notice was required to contain.
13.On 1 September 1994, by operation of reg 4(2) the Migration Reform (Transitional Provisions) Regulation 1994 (Cth) (Transitional Regulations), Mr Guo’s temporary entry permit continued in effect as a transitional (temporary) visa that permitted him to remain in Australia until the day on which his permit would have ceased to be in force. Regulation 23 operated to convert Mr Guo’s application for a permanent entry permit to a transitional (permanent) visa.
While in Australia, Mr Guo was charged with numerous crimes and convicted of some:
(1)In 1991 he was fined $150 for an offence “found in gaming house”.
(2)In 1994 he was charged with conspiracy to supply a commercial quantity of a prohibited drug, but this charge was withdrawn.
(3)In 1994 he was fined $500 for an offence of possessing a falsified passport of a foreign government.
(4)In 2001 he was charged with serious indictable property offences one of which proceeded to a conviction and resulted in a sentence of imprisonment of 25 weeks commencing in 2003.
(5)In 2004 he was charged with assault, destroying or damaging property and three counts of possessing a prohibited drug, but all of these charges were withdrawn.
(6)In 2008 he was charged with possessing a prohibited drug, but this charge was withdrawn.
(7)In 2009 he was convicted of having suspected stolen goods in his personal custody but this conviction was subsequently quashed.
(8)In early 2012 he was charged with possession and supply of a prohibited drug. He was convicted of possession with no other penalty imposed and the charge of supply was withdrawn.
In October 1996 the Minister’s delegate decided that Mr Guo should not be granted a transitional (permanent) visa as he did not satisfy the test of good character in s 501 of the Migration Act 1958 (Cth). This decision was based on the offences in 1991 and 1994 for which Mr Guo was fined and information from police to the effect that Mr Guo had associations with persons and organisations involved in criminal activities and was implicated in the importation of drugs into Australia (allegations which Mr Guo denied).
Mr Guo was notified of this decision on 25 October 1996. It is common ground in this proceeding that this notice was invalid or ineffective or did not constitute a notice within the meaning of the applicable statutory provisions. To explain this it is necessary to delve into the provisions of the Act as they stood at the relevant time. Fortunately, for the purpose of this proceeding, the parties agree about the provisions and their operation.
By item 437.52(a) of Schedule 3 to the Migration (1993) Regulations 1992 (Cth) (the 1993 Regulations) a temporary entry permit, as held by Mr Guo, remained in force if the holder was an applicant for a Class 815 PRC (Permanent) entry permit), as Mr Guo was, “until a decision is made on that application, and the holder has been notified in accordance with regulation 2.8”.
As at 25 October 1996 regulation 2.8 of the 1993 Regulations specified the way in which notice had to be given. Further, s 66(2)(d) of the Act, as it then was, provided that:
Notification of a decision to refuse an application for a visa must:
…
(d) if the applicant has a right to have the decision reviewed under Part 5 or 7 or section 500 - state:
(i) that the decision can be reviewed; and
(ii) the time in which the application for review may be made; and
(iii) who can apply for the review; and
(iv) where the application for review can be made.
In Chan Ta Srey v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1292; (2003) 134 FCR 308 it was held that a notice for the purpose of regulation 2.8 is a notice under and in conformity with s 66 of the Act (at [43] and [53]).
The notice of 25 October 1996 said that Mr Guo had “35 days after the date of this letter” to make an application for merits review of the decision. This was wrong. Under ss 29(1)(d) and 29(2)(a) of the Administrative Appeals Tribunal Act 1975 (Cth) (as then in force), Mr Guo had 28 days from the date of being provided with a copy of the reasons for decision in which to lodge an application.
On this basis the Commonwealth conceded for the purpose of this proceeding that the notice of 25 October 1996:
did not comply with s 66(2)(d) of the Act, and therefore did not constitute notice in accordance with regulation 2.8 of the 1993 Regulations, and therefore did not engage the operation of Item 437.52(a) of Schedule 3 of the 1993 Regulations, with the ultimate effect that the Applicant’s Class 437 (Temporary) entry permit did not cease to operate upon receipt of the notice of 25 October 1996.
On 22 November 1996, within the 28 day period which in fact applied, Mr Guo applied to the Administrative Appeals Tribunal to review the decision to refuse his application for a permanent visa. The Commonwealth also made this concession for the purpose of this proceeding:
the fact [Mr Guo] actually commenced valid proceedings for merits review of the Minister’s visa refusal decisions in the Administrative Appeals Tribunal in 1996 was not effective to “cure” the conceded non-compliance with s 66(2)(d) of the Act.
On 3 November 1997 the Tribunal dismissed Mr Guo’s application for non-appearance.
On 21 January 2003 Mr Guo applied to the Tribunal to reinstate the application and sought an extension of time within which to make a second application for review. The Tribunal dismissed both applications on 9 July 2004 (Guo and Minister for Immigration and Multicultural and Indigenous Affairs [2004] AATA 729). Mr Guo’s application for judicial review of the Tribunal’s decisions was also subsequently dismissed on 10 December 2004 (Guo v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1585).
Mr Guo was taken into and held in immigration detention between about 19 December 2004 and 6 May 2005. Mr Guo made various applications for visas during and after this period, including applications for review of decisions. He was also released from immigration detention on the basis of a bridging visa while his various applications were considered and determined. However, on 1 July 2011 the bridging visa he held expired.
As noted above, in 2012 Mr Guo was charged with possession and supply of a prohibited drug. He had been arrested on or about 10 February 2012 in connection with this charge and detained by the NSW Police and was then taken to the Metropolitan Remand and Reception Centre (the MRRC) at the Silverwater Correctional Complex. The MRRC is also a place of immigration detention for the purposes of the Act.
Mr Guo’s detention came to the attention of officers of the Department of the Minister responsible for administering the Act (which has been known by various names over time). One officer, Vanessa Sebastian, sent a facsimile to the Burwood Local Court on 10 February 2012 requesting that Mr Guo be held as a person known or reasonably suspected to be an unlawful non-citizen. Another officer, Joanne Luu, sent a facsimile to the MRRC on 13 February 2012 requesting that he be held there on the same basis.
Mr Guo appeared before the Local Court on 29 February 2012, having been held on remand at the MRRC from the time of his transfer there. He was granted bail. However, he was not released on bail but was transferred back to the MRRC, I infer by reason of the facsimile Ms Luu had sent. Later on 29 February 2012 officers of the Department, including Ms Luu, attended at the MRRC, detained Mr Guo under the Act and transferred him to the Villawood Immigration Detention Centre on the alleged basis that Ms Luu, as a relevant officer, held a reasonable suspicion that Mr Guo was an unlawful non-citizen. Mr Guo was held at Villawood in immigration detention until 26 September 2014.
On 12 August 2014 Mr Guo applied to the High Court for a writ of habeas corpus to secure his release from immigration detention on the basis that he was a lawful non-citizen as referred to in s 13 of the Act and thus not liable to be detained because his transitional (temporary) visa (generally referred to as a temporary entry permit) remained in force. The High Court proceedings were resolved by consent on 26 September 2014, on a basis consistent with the Commonwealth’s concessions above. Mr Guo was thus released from immigration detention on 26 September 2014.
On 3 December 2014 Mr Guo was again notified of the decision to refuse his application for a Class 815 (PRC (permanent) entry permit). On that day officers of the Department, including Christopher Czerkies, accompanied by the NSW police, attended Mr Guo’s residence to give him this notice. Mr Czerkies then detained Mr Guo on the alleged basis that he reasonably suspected Mr Guo of being an unlawful non-citizen and Mr Guo was again transferred to Villawood where he remained and remains in immigration detention.
However, the Commonwealth also concedes for the purpose of this proceeding that the second notice of 3 December 2014 was itself invalid and/or ineffective under the Act and did not operate to terminate Mr Guo’s Class 437 (Temporary) entry permit. Specifically, as the Commonwealth acknowledged in its submissions:
13.The error in the purported notification of 3 December 2014 was that it stated that the time limit for seeking merits review was “nine (9) days after the day on which [the Applicant was] taken to be notified of the decision”. The specified 9-day time limit reflected the then requirements of s 500(6B) of the Act.
14.Section 500(6B) of the Act was introduced by item 21 of Schedule 1 to the Migration Legislation Amendment (Strengthening of Provisions Relating to Character and Conduct) Act 1998 (Cth) (the Amending Act) and came into operation on 1 June 1999.
15.The amendment to s 501 effected by item 23 of Schedule 1 of the Amending Act applied to visas and visa applications in existence prior to the commencement of the Amending Act: see item 28 of Schedule 1 of the Amending Act. The Minister concedes, however that, by reason of the operation of item 32(1) of Schedule 1 of the Amending Act, the amendments to s 500 (including the introduction of the 9-day time limit in s 500(6B)) did not apply in the Applicant’s case.
16.The amendment to s 66 introduced by item 4 of Schedule 1 of the Amending Act has the effect that s 66 no longer applies to the notification of decisions made under s 501. However, for the purpose of this proceeding, the Minister concedes that, in order to effectively bring the Class 437 (Temporary) entry permit to an end, the notice of 3 December 2014 was required by s 66(1)(d) of the Act to state that the time limit in which merits review could be sought was the time limit was that applicable at the time of the original decision in 1996.
As a result, on or about 6 March 2015, while being held in immigration detention at Villawood, Mr Guo was given a third notice notifying him of the decision to refuse to grant him a Class 815 (Permanent) entry permit. As put in the submissions for Mr Guo:
The third notification letter, unlike the first and second notification letters, complied with s 66 of the Act and reg 2.8 of the 1993 Regulations. As a consequence, Mr Guo’s transitional (temporary) visa ceased to be in effect on and from 6 March 2015.
Mr Guo continues to be held at Villawood.
3. Statutory provisions
Section 5(1) of the Act defines terms “unless the contrary intention appears”. Definitions included the following (at all material times):
“detain” means:
(a) take into immigration detention; or
(b) keep, or cause to be kept, in immigration detention;
and includes taking such action and using such force as are reasonably necessary to do so.
…
“immigration detention” means:
(a) being in the company of, and restrained by:
(i) an officer …
…
(b) being held by, or on behalf of, an officer:
(i) in a detention centre established under this Act; or
(ii) in a prison or remand centre of … a State …; or
(iii) in a police station or watch house …
…
“migration zone” means the area consisting of the States …
…
“officer” means:
(a) an officer of the Department …
…
(d) a member … of the police force of a State …

Sections 13 to 15 provided as follows:
13
(1)A non-citizen in the migration zone who holds a visa that is in effect is a lawful non-citizen.
…
14
(1)A non-citizen in the migration zone who is not a lawful non-citizen is an unlawful non-citizen.
…
15
To avoid doubt…if a visa is cancelled its former holder, if in the migration zone, becomes, on the cancellation, an unlawful non-citizen unless, immediately after the cancellation, the former holder holds another visa that is in effect.
As at 29 February 2012, the commencement date of the first period of detention to which Mr Guo’s claim relates, s 189(1) provided that:
If an officer knows or reasonably suspects that a person in the migration zone (other than an excised offshore place) is an unlawful non-citizen, the officer must detain the person.
Section 196 provided:
(1)An unlawful non-citizen detained under section 189 must be kept in immigration detention until he or she is:
(a)       removed from Australia under section 198 or 199; or
(b)       deported under section 200; or
(c)       granted a visa.
(2)To avoid doubt, subsection (1) does not prevent the release from immigration detention of a citizen or a lawful non-citizen.
(3)To avoid doubt, subsection (1) prevents the release, even by a court, of an unlawful non-citizen from detention (otherwise than for removal or deportation) unless the non-citizen has been granted a visa.
(4)Subject to paragraphs (1)(a), (b) and (c), if the person is detained as a result of the cancellation of his or her visa under section 501, the detention is to continue unless a court finally determines that the detention is unlawful, or that the person detained is not an unlawful non-citizen.
…
(6)This section has effect despite any other law.
Amendments made to s 196 by 3 December 2014, when Mr Guo was again detained, are not material.
4. Principles
The parties agreed a number of matters about the operation of the statutory provisions, including the following.
(1)s 189 does not confer a discretion. If an officer knows or reasonably suspects that a person is an unlawful non-citizen the officer must detain the person (Ruddock v Taylor [2005] HCA 48; (2005) 222 CLR 612 at [23]);
(2)because s 189 “is directed not only to cases where an officer knows that a person is an unlawful non-citizen, it extends to cases where the officer reasonably suspects that a person has that status” it follows that “demonstrating that a person is not an unlawful non-citizen does not necessarily take the person beyond the reach of the obligation which s 189 imposes on officers”. Accordingly, the section imposes the duty on an officer to detain a person “where an officer is subjectively convinced that a person is an unlawful non-citizen but later examination reveals that opinion to have been legally flawed”. The disjunctive expression “knows or reasonably suspects” does not “leave, as a middle ground, falling outside the operation of the expression, a case where an officer's subjective opinion has passed from suspicion to certainty of belief but the subject-matter of the belief (what the officer ‘knows’) is legally inaccurate. Rather, in such a case the officer ‘knows or … suspects’ that the person is an unlawful non-citizen and the critical question would be whether the certainty of belief professed by the officer was reasonably based” (Ruddock v Taylor at [27]);
(3)“…what constitutes reasonable grounds for suspecting a person to be an unlawful non-citizen must be judged against what was known or reasonably capable of being known at the relevant time” (Ruddock v Taylor at [40]); and
(4)in determining if a suspicion is reasonable or not, no distinction should be drawn between errors of law and of fact (Ruddock v Taylor at [41]).
Further, it was common ground that as Mr Guo was in fact detained under s 189, the burden of proof rested on the Commonwealth to provide lawful justification for the detention (Ruddock v Taylor at [97] and [140]).
In determining whether an officer’s suspicion that a person is an unlawful non-citizen was reasonable:
(1)“…in order to justify arrest and detention, the suspicion that a person is an unlawful non-citizen must be justifiable upon objective examination of relevant material. Given that deprivation of liberty is at stake such material will include that which is discoverable by efforts of search and inquiry that are reasonable in the circumstances” (Goldie v Commonwealth of Australia [2002] FCA 433; (2002) 117 FCR 566 at [4]);
(2)“…[r]easonable suspicion…lies somewhere on a spectrum between certainty and irrationality. The need to ensure that arrest is not arbitrary suggests that the requirement for a reasonable suspicion should be placed on that spectrum not too close to irrationality” (Goldie at [5]);
(3)an officer is “not empowered to act on a suspicion reasonably formed that a person may be an unlawful non-citizen. The officer is to detain a person whom the officer reasonably suspects is an unlawful non-citizen” (Goldie at [6]);
(4)“…an officer in forming a reasonable suspicion is obliged to make due inquiry to obtain material likely to be relevant to the formation of that suspicion” (Goldie at [6]);
(5)“[f]irst, whether a suspicion is reasonably held must be judged in the light of the facts available to the officer at that particular time. Second, the awareness of conflicting facts that are discarded or ignored has a tendency to undermine the reasonableness of the suspicion otherwise held. Third, reliance upon stale or out of date information, or a partial search of the record without making more recent inquiries, may constitute unreasonable conduct” (Kostopoulos v Commonwealth of Australia [2012] NSWSC 1534 at [54]);
(6)the facts as they appear at the time must be sufficient to induce the required state of mind in a reasonable person (George v Rocket (1990) 170 CLR 104 at 112);
(7)the required state of mind is suspicion, not belief, so that the “facts which can reasonably ground a suspicion may be quite insufficient reasonably to ground a belief, yet some factual basis for the suspicion must be shown” (George v Rocket at 115). But even if it is “belief” which is required (in contrast to a mere suspicion), “the assent of belief is given on more slender evidence than proof” (George v Rocket at 116);
(8)it is the detaining officer who must have the relevant state of mind, but that state of mind “may be based on hearsay material or materials which may be inadmissible in evidence”, provided the materials “have some probative value” (Hyder v Commonwealth of Australia [2012] NSWCA 336; (2012) 217 A Crim R 571 at [15](4)). Thus, an officer “is entitled to form a belief based on what they have been told. The reasonable belief may be based on information which has been given anonymously or on information which turns out to be wrong. The question whether information considered by the arresting officer provided reasonable grounds for the belief depends on the source of the information and its context, seen in the light of the whole of the surrounding circumstances and, having regard to the source of that information, drawing inferences as to what a reasonable person in the position of the independent observer would make of it” (Hyder at [15](8) referring to O’Hara v Chief Constable of Royal Ulster Constabulary [1997] AC 286 per Lord Hope);
(9)“…whether the relevant person had reasonable grounds for forming a suspicion or a belief must be determined not according to the subjective beliefs of the police at the time but according to an objective criterion” (Hyder at [15](7) referring to Anderson v Judges of the District Court of New South Wales (1992) 27 NSWLR 701 at 714 per Kirby P);
(10)“[t]he identification of a particular source, who is reasonably likely to have knowledge of the relevant fact, will ordinarily be sufficient to permit the Court to assess the weight to be given to the basis of the expressed [state of mind] and, therefore, to determine that reasonable grounds for [it] exist” (Hyder at [15(9) quoting New South Wales Crime Commission v Vu [2009] NSWCA 349 at [46]); and
(11)in Okwume v Commonwealth [2016] FCA 1252 Charlesworth J said that:
[130] Where the context is one in which a person is detained by an officer under s 189 of the Act on the basis of a suspicion that the person’s visa has been cancelled, the suspicion will not, in my opinion, be objectively reasonable if the officer at the relevant time knows, or ought reasonably to know, matters that would put a reasonable person in the officer’s position on notice that the cancellation decision is irregular or ineffective.
[131] It is to be borne in mind that the High Court [in Ruddock v Taylor] expressly rejected there being any relevant distinction between mistakes of fact and mistakes of law in assessing the reasonableness of an officer’s suspicion under s 189 of the Act. It follows, in my opinion, that the Court must ascertain the knowledge that the detaining officer had or ought reasonably to have had, not only in respect of the facts, but also in respect of the requirements of the law. Again, the question of whether a detaining officer ought reasonably to have known the requirements of the law will turn on the whole of the legal and factual context in which the impugned act of detention occurs.
There is a potentially difficult issue in this matter arising from the Commonwealth’s submission that:
Where an officer detains the Applicant because of a decision taken by a third party (e.g. the Minister for Immigration and Border Protection), or because of legal advice or a policy position stated by a third party (e.g. another officer within the Department or the Department itself), it is not relevant to ask whether that decision, advice or policy is itself objectively reasonable (in the sense of being justifiable). Rather, the relevant question is whether it is reasonable or justifiable for a person in the position of the officer detaining the Applicant to rely on that decision, advice or policy when determining whether the Applicant is an unlawful non-citizen.
This is not common ground and I will deal with it separately.
There is another potentially difficult issue in this matter as to whether continuing detention may only be lawfully justified if an officer continues to hold the relevant reasonable suspicion and, if so, a further question arises as to which officer must continue to have that state of mind. The Commonwealth contends that provided the initial arresting officer held the requisite state of mind, detention may continue indefinitely without any officer continuing to hold that state of mind. Rather, s 196 determines whether the detention of the person may continue. The Commonwealth contends that, in the alternative, if there is any requirement for an officer to continue to have the relevant state of mind, then that state of mind may be held by either the officer who originally detained the person or by an officer continuing to detain the person. Further, that if the first officer who initially arrested and detained a person did not have the requisite state of mind, but a second officer who continues to detain the person does have the requisite state of mind, the continued detention is lawfully justified from the time the state of mind is held by the second officer. I will also deal with these issues separately as they are not common ground.
What is common ground is that in order for the initial arrest and detention to be lawfully justified the officer arresting and detaining the person must reasonably suspect the person is an unlawful non-citizen at the time of the arrest and detention.
5. Reliance on a policy or advice
I do not accept the Commonwealth’s submission that, to the extent an officer relied on a policy or advice stated by another (for example, a policy, advice or guideline issued by the Department itself), it is not relevant to ask whether that policy, advice or guideline was objectively reasonable.
The reason that I do not accept this submission is that in answering the question whether it was reasonable for the officer to rely on that advice or policy, the content of the policy and its apparent reasonableness or otherwise, and all surrounding circumstances, must be evaluated. This is a result of the requirement introduced by the qualification of “reasonableness” on the “suspicion”, which is to be assessed objectively in all of the circumstances.
Accordingly, in deciding if it was reasonable for an officer to rely on Departmental policy, advice or guidelines all relevant circumstances known or which were reasonably capable of being known at the time must be considered. These considerations necessarily include the content of the Departmental information.
Further, and as submitted for Mr Guo, it cannot be the case that mere reliance on a policy, advice or guideline (or, for that matter, an instruction from a superior), of itself, is necessarily sufficient in every case to discharge the onus of proof without consideration being given to all surrounding circumstances. If that were so, a reasonable suspicion could be formed by a detaining officer based on a policy, advice or instruction known by the person issuing it to be wrong. The effect of the submission is to render the detaining officer a mere cipher; a person inferred to act on the basis of unquestioning obedience to Departmental policies and instructions and without the bringing to bear of any independent judgment. Such an approach is inconsistent with the Act, which not only vests in relevant officers a significant power (to deprive an individual of their liberty) but also constrains the exercise of that power by an equally significant responsibility personal to the individual officer (to know or reasonably suspect that a person is an unlawful non-citizen).
Accordingly, it is not possible to state any general principle as proposed by the Commonwealth. Whether a suspicion is a reasonable suspicion is a question of fact to be determined in the light of all surrounding circumstances applicable to the particular case.
6. Continuing detention
6.1 The Commonwealth’s submissions
As noted, the Commonwealth’s principal submission is that “once detained under s 189, the duration of the detainee’s detention is determined by s 196 of the Act. That is, after the initial detention, ss 189 and 196 do not require any person to maintain a reasonable suspicion that the Applicant is an unlawful non-citizen”.
In support of its principal submission, the Commonwealth referred to Al-Kateb v Godwin [2004] HCA 37; (2004) 219 CLR 562 and Re Woolley; Ex parte Applicants M276/2003 (2004) 225 CLR 1; [2004] HCA 49. In Al-Kateb at [224] Hayne J, with whom McHugh and Heydon JJ agreed, said:
The provisions requiring detention of unlawful non-citizens do not expressly refer to the purpose of detention. Rather, s 189 requires officers to detain unlawful non-citizens and s 196 identifies the period of detention.
In Re Woolley at [224] Hayne J (with whom Heydon J agreed) said:
As I sought to explain in Al-Kateb, there is nothing about the decision-making that must precede detention which bespeaks an exercise of judicial power. If an officer knows or reasonably suspects that a person in the migration zone (other than an excised offshore place) is an unlawful non-citizen, the officer must detain the person. But continued detention does not depend upon the holding of that suspicion. Continued detention under s 196 is predicated upon the person being an unlawful non-citizen. It does not depend upon the formation of any opinion of the Executive. In particular, it does not depend upon the formation of any opinion of the Executive about whether detention is necessary or desirable whether for purposes of investigation or any other purpose. That judgment has been made by the legislature. The Act provides that the detention of an unlawful non-citizen must continue until the detainee is removed or deported or granted a visa and removal must occur “as soon as reasonably practicable” after the occurrence of events which the Act identifies.
To similar effect in Plaintiff M168/10 v The Commonwealth of Australia [2011] HCA 25; (2011) 279 ALR 1 Crennan J said:
[34] It can also be noted that even when an applicant is ultimately found to be a lawful non-citizen, detention mandated by s 189(1) is not thereby rendered unlawful. Ruddock v Taylor supports the proposition that the power to detain under s 189(1), which includes the power to arrest, is to be read so as to include the power to continue to detain. See also the definition of “detain” in s 5(1) of the Act. It appears to me that the detention of the plaintiffs in Melbourne is detention which is authorised and mandated by s 189(1) because, as explained by Hayne J in Re Woolley …, the legislature has made a judgment about the necessity and desirability of the detention of unlawful non-citizens in the migration zone (other than an excised offshore place).
[35] …It is plain that s 189(1) applies except when an unlawful non-citizen is in an excised offshore place and that s 189(3) applies when an unlawful non-citizen is in an excised offshore place. Accordingly, s 189(1) applies to the present detention of the plaintiffs in Melbourne. Having been detained under s 189(1), the detention of the plaintiffs continues until the occurrence of one of the events specified in s 196(1) of the Act, namely, removal, deportation or the grant of a visa.
In Commonwealth of Australia v Fernando [2012] FCAFC 18; (2012) 200 FCR 1 the Full Court of the Federal Court held at [69]:
Nonetheless, s 189(1) operated to require an officer to whom it applied to detain a person in both senses of “detain”, namely it required an officer with the requisite state of mind to take the person into immigration detention either by physically depriving the person of his or her liberty or transforming the nature of the custody or detention in which the person was held, such as serving a term of imprisonment, into immigration detention. Once the person had been detained, by being taken into detention within the meaning of the first sense of “detain”, ss 189(1) and 196(1) required the initial detaining officer and all other officers with the requisite state of mind, to keep the person, or cause him or her to be kept, in immigration detention.
The Commonwealth submitted that to the extent Charlesworth J suggested otherwise in Okwume at [196], her Honour was incorrect. At [196] Charlesworth J said:
Section 196(2) of the Act provides that nothing in s 196(1) prevents the release from immigration detention of a person having the actual status of a lawful non-citizen. However, it does not follow that a person who has the actual status of a lawful non-citizen is entitled to be released. The person must, in my opinion, be kept in detention for so long as the detaining officer maintains a reasonable suspicion that the person does not have that status. Consistent with what I have said in connection with s 189 of the Act, the reasonableness of the suspicion will depend upon what is known or reasonably capable of being known by the detaining officer. Circumstances may arise in which the detaining officer’s suspicion under s 189 of the Act no longer persists in fact, or in which a suspicion that was once reasonably held no longer has an objectively reasonable quality. A detaining officer who no longer has a reasonable suspicion that a person is an unlawful non-citizen must proceed on the basis that the person falls within s 196(2) of the Act. Nothing in either s 189 or s 196(1) of the Act would mandate the person’s continued detention. There being no other provision lawfully justifying the continued detention of the person, the person must be released.

According to the Commonwealth:
A person detained under s 189 who is, in fact, a citizen or lawful non-citizen may be released from immigration detention: see s 196(2) and (4). However, a release in these circumstances occurs where it is determined that the detainee is a citizen or lawful non-citizen. In the case of detainees within the scope of s 196(4) (which the present case is not, as it was a visa refusal on character grounds rather than a visa cancellation on such grounds), only a Court can make such a determination. This supports the proposition that continuing detention under s 196 does not require officers to hold a constant, ongoing suspicion that the detainee is an unlawful non-citizen. Rather, the detention continues unless and until a determination is made that the Applicant is a lawful non-citizen (or unless and until one of the events in s 196(1) occurs). Ordinarily, such a determination would be made where there is some event or change in circumstance that would cause the detainee’s status to be reconsidered.
… It appears to be common ground that it cannot have been the intention of Parliament that the Commonwealth would have to identify a particular officer or officers who continuously held the requisite suspicion for every hour, minute and second of the Applicant’s detention (as well as a similar suspicion in respect of every other person in immigration detention).
… there is nothing in the text of ss 189 or 196 that requires any regular reviews of the Applicant’s status. What would such reviews involve? How regularly must the reviews be performed? Who must perform the reviews? The fact the statute does not provide a clear answer to these questions suggests that the statute does not impose the requirement proposed by the Applicant.
The Commonwealth submitted that its approach was supported by the temporal sequences apparent in ss 189 to 196. A person is initially detained under s 189. The person must be notified of certain matters as soon as reasonably practicable after the detention under s 194. The detainee may apply for a visa within the time constraints imposed by s 195. The duration of detention is governed by s 196. The Commonwealth also noted s 196(4) which provided that if detention is the result of visa cancellation under s 501 (or other provisions) then “the detention is to continue unless a court finally determines that the detention is unlawful, or that the person detained is not an unlawful non-citizen”. While not applicable to Mr Guo the Commonwealth submitted that it is apparent from this provision that continued detention is not dependent on any officer holding a reasonable suspicion that the person is an unlawful non-citizen. As the Commonwealth put it:
There is no reason to treat the cases of persons to whom s 196(4) does not apply any differently, save that in the case of such persons, a decision could be made administratively to release the person if it were determined, for example, that the person was not an unlawful non-citizen.
If, contrary to its principal position, it is necessary that there be an officer continuing to hold the required reasonable suspicion, the Commonwealth submitted that:
… in the absence of any event that might call for reconsideration of the position, the Court should readily infer that those officers, and any other officers involved in the Applicant’s ongoing detention, continued to hold the requisite suspicion.
In support of this submission the Commonwealth referred to:
(1)Ruddock v Taylor at [51] that:
Nothing was said to have occurred during either period of detention that would affect the conclusions that, until an order was made quashing the relevant decision to cancel the respondent's visa, those who detained the respondent reasonably suspected that he was an unlawful non-citizen, and that accordingly, his detention was lawful and required by the Act.
(2)Fernando at [99] that:
… it is natural to presume that once a person has been detained inside a jail or detention facility, their detention has been authorised by law
Accordingly, in the alternative to its principal case, the Commonwealth said:
Hence, even if the Commonwealth does bear an onus to demonstrate a continuing reasonable suspicion under s 189 of the Act throughout the First and Second Periods of detention, satisfaction of that onus should not be considered a heavy forensic burden. That burden could be satisfied by establishing that:
(a)the initial detention of the Applicant was lawfully justified; and
(b)there was no subsequent event which required the Applicant’s status to be reconsidered.
6.2 The applicant’s submissions
The applicant submitted that the Commonwealth’s principal case cannot readily be reconciled with Ruddock v Taylor or Fernando. In Ruddock v Taylor the decision turned on s 189, not s 196 as is apparent from the reasons at [28] in which Gleeson CJ, Gummow, Hayne and Heydon JJ said:
That is, it follows from the considerations just mentioned that s 189 may apply in cases where the person detained proves, on later examination, not to have been an unlawful non-citizen. So long always as the officer had the requisite state of mind, knowledge or reasonable suspicion that the person was an unlawful non-citizen, the detention of the person concerned is required by s 189.
The proposition in Fernando at [69], repeated in [72], also emerges from observations including:
(1)“[t]he Commonwealth’s argument did not exhaust or exclude the application of s 189(1) to the persons who actually took Mr Fernando into immigration detention. The individual who physically takes a person into immigration detention must have at that time one of the two states of mind prescribed by s 189(1) so as to justify him or her in the act of depriving or interfering with the liberty of another: Ruddock at [40], [221]. It is not enough for the actual person effecting that deprivation or interference to think that someone else knows or believes the detainee is an unlawful non-citizen” (at [84]);
(2)“…there was no evidence that any of them evinced a consciousness or intention that what he or she was doing, after hearing what Mr Fernando said, was acting under s 189(1), rather than assuming, as would be natural, that he was already in immigration detention under whatever power was necessary to justify this” (at [96]);
(3)“…[o]nce Mr Fernando had been received into the detention centre, it is unlikely that any official would have turned his or her mind to effecting a fresh act that amounted to detaining him under s 189(1). That exercise was the responsibility of the persons who had detained him on 5 October 2003 at the prison and who processed him on arrival at the detention centre. There was no evidence that they had done so” (at [97]);
(4)“[i]n the ordinary course the person in charge of a detention centre or jail must satisfy himself or herself that the violation of an individual’s liberty that will occur on receiving him or her into the facility has been authorised according to law. That did not happen in Mr Fernando’s case. The casual attitude exhibited by all the persons concerned in his detention to whether the requirements of s 189(1) had been satisfied is unlikely to have been exceptional” (at [98]);
(5)“[i]f Mr Fernando could be detained for over three years when no-one turned his or her mind to complying with s 189(1), so could anyone else, including Australian citizens. It is not unusual for persons detained by those in authority to be ignored when they protest that the officials had no right to detain them. That is because it is natural to presume that once a person has been detained inside a jail or detention facility, their detention has been authorised by law. That presumption is a natural consequence of our society’s fundamental value of, and belief in, the rule of law and its abhorrence of arbitrary detention or imprisonment” (at [99]);
(6)“…there was no evidence that, at any time during his immigration custody, any officer, as defined, ever took Mr Fernando into detention or kept or caused him to be detained there with any state of mind required in s 189(1)” (at [100]) so that “the Commonwealth failed to prove that its conduct in detaining Mr Fernando on 5 October 2003 or later was lawful” (at [101]).
Plaintiff M168/10 at [34], it was submitted, supports the case for Mr Guo not the Commonwealth, as it refers to s 189(1) being the source of the power to detain and to continue to detain.
Re Woolley, it was submitted, also supports Mr Guo’s case and not that of the Commonwealth. The reasons of Hayne J at [224] do not merely say that “continued detention does not depend upon the holding of that suspicion” (that is, the reasonable suspicion required by s 189(1)). His Honour said that “[c]ontinued detention under s 196 is predicated upon the person being an unlawful non-citizen. It does not depend upon the formation of any opinion of the Executive. … The Act provides that the detention of an unlawful non-citizen must continue until the detainee is removed or deported or granted a visa and removal must occur ‘as soon as reasonably practicable’ after the occurrence of events which the Act identifies”. In other words, this reasoning is to the effect that continued detention depends on the fact of being an unlawful non-citizen, not a state of mind of any officer. On this approach, s 189(1) uses “detain” in the sense of sub para (a) of the definition in s 5(1) ((a) take into immigration detention) and s 196(1) uses “detain” in the sense of sub para (b) of the definition in s 5(1) ((b) keep, or cause to be kept, in immigration detention).
This approach accords with Minister for Immigration and Multicultural and Indigenous Affairs v VFAD [2002] FCAFC 390; (2002) 125 FCR 249 at [152] in which the Full Court of the Federal Court endorsed the reasoning of Gray J in VHAF v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 1243 as follows:
77. It will be seen that that definition has two parts. “Detain” can mean the act of taking into detention. It can also mean the continued holding of a person in detention. On this basis, counsel for the Minister submitted that the effect of s189 is twofold. Not only is there a power, and a duty, to take a person into detention if an officer knows or reasonably suspects that the person is an unlawful non-citizen, but there is also a power, and a duty, to keep that person in detention until the reasonable suspicion has been allayed. Thus, counsel for the Minister submitted, it cannot be said that the detention of the applicant became unlawful if a visa was granted on 7 December 2001 unless the applicant can show that no relevant officer of the Department held a reasonable suspicion that the applicant was an unlawful non-citizen.
78. To construe s189 in that way would be productive of serious practical difficulties. It would be almost impossible to know whether, somewhere in the Department, there existed an officer, perhaps ignorant of recent developments or other facts, harbouring a suspicion that could therefore be considered to be reasonable, so that continued detention of a person was required. Even if the officer responsible for the original detention no longer had a reasonable suspicion that the person detained was an unlawful non-citizen, that officer would be powerless to arrange the release of the person unless he or she became satisfied that no other officer held such a reasonable suspicion. It would be almost impossible for a person in detention to know whom to contact for the purpose of providing information that would allay a reasonable suspicion.
79. Fortunately, s189 is susceptible of a construction that could avoid such dramatic results. It should be noted that the definition of “detain” in s5(1) of the Migration Act is expressed in the alternative. The use of the disjunctive between the two arms of the definition appears to have been a deliberate step by the drafter, for the purpose of making the definition useful in a variety of contexts. It is also worth noting that, in the terms of s5(1), the definition is applicable throughout the Migration Act “unless a contrary intention appears”. An examination of the context of s189 makes it clear that the word “detain” in s189 has the meaning given by the first limb of the definition of “detain” in s5(1), namely to take into immigration detention. It is s196 that provides for the keeping of such a person in immigration detention until one of the events referred to in s196(1) occurs. Counsel for the Minister pointed out that s196(2) is expressed in permissive terms, rather than in terms that mandate the release from detention of a citizen or a lawful non-citizen. This is so. It is also true that s196(2) contains no reference to s189. The clear assumption underlying these provisions is that detention of a citizen, or a lawful non-citizen, is unlawful unless justified. The taking into detention of such a person may be justified on the basis of a reasonable suspicion that the person is an unlawful non-citizen. If, in fact, the person is a lawful non-citizen, there is an entitlement to immediate release.
80. In my view, s189 of the Migration Act provides no authority for the continued detention of a lawful non-citizen. If the applicant succeeds at the trial in establishing that a protection visa was granted to him on 7 December 2001, it will be possible for him to succeed in his claim for a declaration that his detention since that date has been unlawful. Nothing in Goldie v Commonwealth of Australia [2002] FCA 433 at [6] and [20] per Gray and Lee JJ and [45] - [47] per Stone J, or in NAAV v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 228 at [367] per Wilcox J, [454] and [580] per French J and [645] per von Doussa J, with whom Black CJ and Beaumont J agreed, on both of which counsel for the Minister relied, contradicts this proposition. The comments made in Goldie were directed to the process of taking into detention, not to the question of continued detention. …
The observations in Goldie at [6] include that “[s]ection 196 operates upon a person detained under s189 who is an unlawful non-citizen, not upon a person reasonably suspected of being an unlawful non-citizen”.
As the applicant put it:
The construction of ss 189 and 196 adopted by Hayne J and Heydon J in Woolley, Gray J in VHAF and the Full Court in VFAD reflects a principled analysis of the two provisions. It has the consequence that a person taken into detention cannot complain about that action if it has a reasonable basis, but the continued detention of a citizen or a lawful non-citizen is unauthorised. To the extent that Ruddock, Fernando and Plaintiffs M168/10 are to the contrary, it is formally submitted that they are wrong.
As noted above, if this construction of ss 189 and 196 is correct, the power of any officer to “detain” Mr Guo on the basis of a reasonable suspicion that he did not hold a visa applied only to the acts of taking him into detention. Because he was not an unlawful non-citizen, there was no power to keep him in detention thereafter. His claim must, therefore, succeed in respect of all but the initial moments of each period of detention. (As to those initial moments, an inquiry into the existence of a reasonable suspicion under s 189(1) would be required.)
The Commonwealth’s position at [31] (emphasising ss 196(2) and (4)) appears to rest on an understanding that a citizen or lawful non-citizen, who has been detained under s 189, can lawfully be kept in detention under s 196—regardless of whether anybody believes him or her to be an unlawful non-citizen—until a court orders his or her release. Apart from being an alarming result, and contrary to the plain words of s 196(1), it is simply illogical. It means that detention is lawful until a court orders the detainee’s release; but a Chapter III court has no power to make that order without having held that the detention is unlawful. The Commonwealth’s construction is also inconsistent with the way in which the word “detention”, as it appears in s 196(3), has been construed by the High Court: detention means lawful detention. Subsection (4) ought to be construed in the same way.
Alternatively, if Hayne J’s construction does not have the consequence described above, it means at least that the formation of opinions after the initial detention of Mr Guo was irrelevant. Thus, if the Commonwealth is unable to demonstrate that those officers who took Mr Guo into immigration detention on 29 February 2012 and 3 December 2014 had a reasonable suspicion that he was an unlawful non-citizen, it will follow that Mr Guo was detained unlawfully in respect of the entire First and Second Periods—irrespective of what any officer knew, or suspected, at times after Mr Guo was taken into detention on those dates.
6.3 Discussion
In dealing with the competing submissions about the meaning of ss 189 and 196 it is necessary to keep in mind that the various cases deal with different issues. Some parts of the decisions concern the relationship between the two provisions. Others concern the meaning to be given to “reasonable suspicion”. Others again concern questions of fact and inference dependent on the circumstances of the individual case.
Am I bound by Ruddock v Taylor, Fernando and Plaintiff M168/10 to accept the Commonwealth’s principal submission that provided a person was initially taken into immigration detention by an officer who reasonably suspected the person of being an unlawful non-citizen in accordance with s 189(1), the person must be kept in immigration detention thereafter under s 196(1) until one of the events in s 196(1)(a) to (c) occurs whether or not (i) any officer continues to reasonably suspect the person is an unlawful non-citizen, and (ii) the person is in fact an unlawful non-citizen?
It may be accepted that Ruddockv Taylor decided that an officer may hold the requisite reasonable suspicion under s 189(1) even if the person is not an unlawful non-citizen, the reasonable suspicion being based on an error of law or fact. On the facts in Ruddock it was proved that each detaining officer reasonably suspected that the respondent was an unlawful non-citizen on the basis of satisfying themselves that the respondent’s visa had been cancelled and the respondent held no other visa (at [49]-[50]). At [51] it was held that:
It also follows from that fact, and the reasons given earlier, that the respondent's detention was lawful and required by the Act. Nothing was said to have occurred during either period of detention that would affect the conclusions that, until an order was made quashing the relevant decision to cancel the respondent’s visa, those who detained the respondent reasonably suspected that he was an unlawful non-citizen, and that accordingly, his detention was lawful and required by the Act.
The reasoning at [51] contemplates that the lawfulness of continued detention of a person reasonably suspected to be an unlawful non-citizen may change during the course of detention as a result of an event which could affect the state of mind of the detaining officer or officers.
One essential component of the decision in Ruddockv Taylor is that the lawfulness of continuing detention does not depend on the fact whether the person is or is not an unlawful non-citizen. To the extent that the applicant relied on Al-Kateb and Re Woolley to support the proposition that continued detention is necessarily unlawful if the person is not in fact an unlawful non-citizen, I am unable to reconcile that proposition with the reasoning in Ruddock v Taylor.
Another essential component of the reasoning in Ruddock v Taylor is that, on the facts of that case, it should be inferred that the officers who detained the respondent, at all material times, held the requisite reasonable suspicion under s 189(1). To the extent that the Commonwealth submitted that continued detention was regulated by s 196(1) which did not require the existence of any state of mind on the part of an officer, again, I find the proposition impossible to reconcile with the reasoning in Ruddock v Taylor.

To my mind Ruddock v Taylor does not suggest that a person is detained under s 189(1) and then kept in detention under s 196(1). Rather, the reasons indicate that a person is detained and kept in detention under s 189(1) with the period of detention being fixed by s 196(1) (see at [11]). If it were otherwise then the observations at [51] would be redundant (because s 196(1) does not depend on the existence of a state of mind) and the observations at [11] would be inaccurate (because s 196 would not merely fix the period of detention but would empower the continuing detention).
For these reasons I do not accept the approach of either party to Ruddock v Taylor. It does not support the Commonwealth’s principal contention that a person reasonably suspected of being an unlawful non-citizen may continue to be detained under s 196(1) whether or not any officer continues to hold that reasonable suspicion. It supports the contrary proposition that the continuation of a reasonable suspicion is necessary to enable continued detention. It also does not support the submission for Mr Guo that a person must in fact be an unlawful non-citizen in order for continued detention under s 196(1) to be lawful. Again, it supports the contrary proposition that continued detention may be lawful under s 189(1) provided an officer continues to hold the requisite reasonable suspicion. It also supports another proposition, which concerns an issue of fact or, more properly, inference: namely, that if an officer held a reasonable suspicion at the time a person was detained, that reasonable suspicion may continue to exist. Facts and inferences from fact, however, depend on the individual circumstances of each case.
I am also unable to reconcile the reasoning in Ruddock v Taylor with that in VHAF and VFAD. The reasoning in Ruddock v Taylor does not support the view that s 189(1) concerns taking a person into detention and s 196(1) keeping a person in detention. Further, Ruddock v Taylor inescapably stands for the proposition that any person, citizen or not, may lawfully be detained provided that the detaining officer reasonably suspects the person of being an unlawful non-citizen.
The approach in Ruddock v Taylor, it must be said, is not readily reconcilable with the observations on which the parties relied in Al-Kateb and Re Woolley. Neither of these cases, however, concerned a claim for false imprisonment. Al-Kateb involved a person who was willing to be removed from Australia but could not be removed; the question was whether this person, faced with the prospect of indefinite detention, was required to be released. There was no issue about the appellant’s status. He was in fact an unlawful non-citizen. Re Woolley involved persons who were minors who also, in fact, were unlawful non-citizens. Neither case refers to Ruddock v Taylor. Given the different context, it cannot be said that any arguable inconsistency between the reasoning in these cases and Ruddock v Taylor suggests that Ruddock v Taylor is no longer good law. Given this, to the extent of any inconsistency between the reasoning in Ruddock v Taylor, which is directly on point, and these cases, for present purposes the reasoning in Ruddock v Taylor must prevail. This said, there are some possible inconsistencies:
(1)the reasoning in Al-Kateb and Re Woolley, arguably, does not confine the operation of s 196(1) to the fixing of the period of detention under s 189(1). It is to the effect that a person detained under s 189(1) must continue to be detained under s 196(1); and
(2)the reasoning in Al-Kateb and Re Woolley about s 196(3), that the provision pre-supposes the detention is lawful, suggests that s 196 as a whole is concerned with lawful detention of persons who are in fact unlawful non-citizens, and not merely persons who are reasonably suspected to be unlawful non-citizens but in fact are lawful non-citizens.
Plaintiff M168/10 concerned interlocutory relief. Justice Crennan referred at [30] to the statement of Hayne J in Re Woolley at [224] and at [34] to Ruddock v Taylor without suggesting any inconsistency between the two might exist.
In Fernando the respondent was taken into immigration detention following the cancellation of his visa on 5 October 2003, before receipt of Mr Fernando’s submissions about why his visa should not be cancelled. Mr Fernando remained in detention until 18 January 2007 at which time he was released because it was then accepted that the decision to cancel his visa might be invalid for denial of procedural fairness. Mr Fernando claimed damages on a range of grounds including false imprisonment. The Commonwealth claimed that the detention was lawful relying on s 189(1), the existence of a reasonable suspicion that Mr Fernando was an unlawful non-citizen (by reason of the visa cancellation). A question which arose on the facts was the officer who had to hold the reasonable suspicion. At [69] the Full Court referred to the need for the initial detaining officer and all officers thereafter detaining a person to hold the requisite state of mind.
At [71] in Fernando the Full Court noted that “[i]n Ruddock at [49]–[50] it is recorded that each of the officers who had been responsible for effecting Mr Taylor’s detention gave evidence of the steps they had taken before detaining him.” By this I take it that the Full Court understood that, on the facts in Ruddock v Taylor, all officers who were responsible for detaining the respondent in that case proved that they held a reasonable suspicion that Mr Taylor was an unlawful non-citizen (as a result of which the detention was lawful). The Full Court continued at [72]:
This construction is reinforced by s 194(1), although, by force of s 193(1)(a)(iv), it did not apply in a case, such as Mr Fernando’s, where the Minister personally had cancelled a person’s visa. Section 194(1) required the officer who detained a person under s 189 to make the detainee aware of his or her right to apply for a visa under s 195(1). It would defeat the purpose of s 195(1) if “detains”, as used in s 194(1) extended to the second sense of the definition, namely to keep or cause to be kept in immigration detention. This is because the Parliament intended that the detainee be made aware of his or her right to apply for a visa only once, namely, as soon as reasonably practicable after he or she was taken into immigration detention. On the other hand, s 189(1) also required other officers to keep the person detained, or cause him or her to be kept in immigration detention when they had one of the requisite states of mind. It follows that an officer with the necessary state of mind could detain a person by causing him or her to be kept in immigration detention because the first officer caused another officer to take the person into immigration detention and then keep the detainee there.
The observations in the last two sentences of [72] are consistent with this understanding. That is, the person responsible for taking and for keeping a person in immigration detention must hold the reasonable suspicion as required by s 189(1). On the facts in Fernando, however, the officer in fact detaining the respondent could not have formed the requisite state of mind relying on the request to detain received from another officer because the request to detain “was devoid of intelligible content that could be relied on to justify depriving Mr Fernando of his liberty” (at [74]). Added to this, there was no evidence that the persons who detained the respondent were officers for the purpose of s 189(1) (at [75]). As such, the “appellants failed to prove their case that anyone who detained Mr Fernando acted lawfully” (at [79]). The Full Court also noted that the respondent was transferred from Perth to Baxter detention centre and the “appellants made no attempt to prove the authority or state of mind of anyone at the Baxter detention centre to detain Mr Fernando in the event that his detention at the Perth centre had not been lawful” (at [80]). This statement discloses that the Full Court considered it necessary that the detaining officer hold the required reasonable suspicion throughout the respondent’s detention. Consistent with this, the Full Court said at [84] that:
The individual who physically takes a person into immigration detention must have at that time one of the two states of mind prescribed by s 189(1) so as to justify him or her in the act of depriving or interfering with the liberty of another: Ruddock at [40], [221]. It is not enough for the actual person effecting that deprivation or interference to think that someone else knows or believes the detainee is an unlawful non-citizen.
The Full Court also rejected the argument that the supervisor of the detention centre had the requisite state of mind. This involved a factual finding on the evidence, but salient to the inference drawn were the facts that: (i) there was no evidence that any of those “officials” was an “officer” for the purposes of s 189(1), (ii) while Mr Fernando was already in detention, there was no evidence that any of those persons detained him or turned his or her mind to doing so, (iii) there was no evidence that any of those persons evinced a consciousness or intention that what he or she was doing, after hearing what Mr Fernando said, was acting under s 189(1), rather than assuming, as would be natural, that Mr Fernando was already in immigration detention under whatever power was necessary to justify this (at [96]). The Full Court continued:
[97] In those circumstances, the Court should not draw the serious conclusion that perhaps one of the people connected to ACM or the Department to whom Mr Fernando spoke on 6 October 2003, was an “officer” who also formed the state of mind that he or she knew or reasonably suspected that Mr Fernando was an unlawful non-citizen and he or she was then and there taking him into immigration detention. In any event, this was not a case that the Commonwealth pleaded, let alone proved, to justify its detention of Mr Fernando. Once Mr Fernando had been received into the detention centre, it is unlikely that any official would have turned his or her mind to effecting a fresh act that amounted to detaining him under s 189(1). That exercise was the responsibility of the persons who had detained him on 5 October 2003 at the prison and who processed him on arrival at the detention centre. There was no evidence that they had done so.
[98] In the ordinary course the person in charge of a detention centre or jail must satisfy himself or herself that the violation of an individual’s liberty that will occur on receiving him or her into the facility has been authorised according to law. That did not happen in Mr Fernando’s case. The casual attitude exhibited by all the persons concerned in his detention to whether the requirements of s 189(1) had been satisfied is unlikely to have been exceptional.
[99] In one sense, with hindsight, it can be argued that Mr Fernando could have been lawfully detained on 5 October 2003 because he was then actually, or at least, able reasonably to be suspected to be, an unlawful non-citizen and so no real harm was done. But, that would make the safeguards that the Parliament enacted to protect individual liberty worthless. If Mr Fernando could be detained for over three years when no-one turned his or her mind to complying with s 189(1), so could anyone else, including Australian citizens. It is not unusual for persons detained by those in authority to be ignored when they protest that the officials had no right to detain them. That is because it is natural to presume that once a person has been detained inside a jail or detention facility, their detention has been authorised by law. That presumption is a natural consequence of our society’s fundamental value of, and belief in, the rule of law and its abhorrence of arbitrary detention or imprisonment.
None of these statements support the Commonwealth’s principal submission. In particular, the observation that “it is natural to presume that once a person has been detained inside a jail or detention facility, their detention has been authorised by law” should be understood as supporting the proposition that a presumption that a person has been lawfully detained because of the mere fact the person is in detention should not be taken to be the holding of the state of mind required by s 189(1). Section 189(1) requires the detaining officer actually to hold the reasonable suspicion, meaning that a mere presumption that detention is lawful is insufficient.
Based on this analysis, I do not accept that Ruddock, Fernando and Plaintiff M168/10 support the Commonwealth’s principal submission. To the contrary, they support the proposition that for a person to be taken into detention lawfully the detaining officer must hold the requisite reasonable suspicion and for a person to be kept in detention lawfully the detaining officer at that time must hold the requisite reasonable suspicion.
Further, the means by which such a reasonable suspicion may be formed, may be held and may continue are questions of fact and inference to be determined on the evidence of the particular case, not questions of statutory construction. Accordingly, to the extent that the Commonwealth’s principal submission depends on the impracticality or inconvenience of an officer having to hold the requisite state of mind for “every hour, minute and second” of Mr Guo’s continued detention, the submission is to be evaluated at the level of fact, not statutory construction or principle. It is also to be evaluated on the basis that it is the Commonwealth that bears the onus of proving the lawfulness of Mr Guo’s detention. How the Commonwealth chooses to attempt to do so is a matter for it. The Commonwealth is free, via the Department, to establish such policies, procedures and practices as it sees fit to enable it to be able to prove that persons are only detained, both initially and on a continuing basis, by an officer or officers under the Act who hold a suspicion which is reasonable in all the circumstances. The alleged difficulty or burden of the Commonwealth doing so deserves short shrift given that it is in control of its own process from beginning to end.
For these reasons it is not to the point that the statutory provisions do not provide for any review of the status of a detained person. The power which is vested in an officer to detain a person under s 189(1) is confined. If an officer detains a person, in the sense of either takes or keeps a person in an immigration detention, that officer must hold the requisite state of mind. All else is an issue of fact or inference from fact in circumstances where the onus is on the Commonwealth, not the detained person, and the Commonwealth can establish whatever procedures it wishes to ensure it can prove that any detention under the Act is lawful.
For these reasons also I am unable to accept the case put for Mr Guo that in order for Mr Guo’s continuing detention under s 196(1) to be lawful he had in fact and law to be an unlawful non-citizen with the result that, necessarily, all but his initial takings into detention during the two periods were unlawful. While this argument has some attraction given that we are dealing with depriving persons of their liberty, it is inconsistent with the reasoning in Ruddock v Taylor and Fernando by which I am bound. I am also unable to accept the submission for Mr Guo that the reasoning of Hayne J in Al-Kateb and Re Woolley means that the formation of the relevant state of mind after Mr Guo’s initial detention must be irrelevant. This proposition too is inconsistent with Ruddock v Taylor and Fernando. In other words, unlawful detention may become lawful from the time a detaining officer holds the requisite state of mind in accordance with s 189(1).
It follows that the reasoning of Charlesworth J in Okwume at [196] is consistent with that in Ruddock v Taylor and Fernando. In summary, based on Ruddock v Taylor and Fernando:
(1)for the taking of a person into immigration detention to be lawful, the Commonwealth must prove that the detaining officer or officers held a reasonable suspicion at that time that the person was an unlawful non-citizen;
(2)for the keeping of a person in immigration detention to be lawful, the Commonwealth must prove that the detaining officer or officers during the person’s detention held a reasonable suspicion that the person was an unlawful non-citizen;
(3)the lawfulness of detention, at all times, depends on the detaining officer or officers holding a reasonable suspicion that the person is an unlawful non-citizen;
(4)as such, lawful detention may become unlawful if a detaining officer does not or no longer holds a reasonable suspicion that the person is an unlawful non-citizen;
(5)similarly, unlawful detention may become lawful if the detaining officer forms a reasonable suspicion that the person is an unlawful non-citizen;
(6)whenever detention is or becomes unlawful, the person is falsely imprisoned and the Commonwealth may be liable for that tortious conduct;
(7)the Commonwealth bears the onus of proving the lawfulness of detention and thus must prove the existence of the relevant reasonable suspicion in the mind of the detaining officer or officers; and
(8)the Commonwealth’s complaints about the impracticality and inconvenience of having to prove the existence and subsistence of the required state of mind on the part of the detaining officer or officers do not carry weight. For one thing, when it comes to the deprivation of individual liberty, the common law is a vigilant guardian, and complaints by the person depriving another of their liberty that they might be inconvenienced by having to prove the lawfulness of the detention garner little support. For another, proof sufficient to establish the lawfulness of immigration detention involves matters of fact and of inference from fact. The Commonwealth is free to assist itself in discharging the onus of proof by the implementation of whatever systems, processes and safeguards it sees fit and by the calling of such evidence in any particular case as it sees fit.
Otherwise, the discussion above also supports the following:
(1)the required state of mind on the part of the detaining officer is a reasonable suspicion that the person is an unlawful non-citizen, not that the person might be or might become an unlawful non-citizen;
(2)there are no pre-determined rules about how the detaining officer might form such a reasonable suspicion, but such a suspicion must actually be held by the detaining officer. Mere belief or assumption that someone else might hold that state of mind does not answer the statutory requirement. Nor does a mere assumption that if a person is being detained the detention is lawful;
(3)if the source of the belief is a Departmental policy, advice, guideline or instruction that fact alone does not necessarily make a suspicion reasonable. It may or may not be reasonable for an officer to rely on a Departmental policy, advice, guideline or instruction depending on the circumstances. And even if it is reasonable for an officer to rely on a Departmental policy, advice, guideline or instruction, the suspicion may or may not be reasonable depending on other surrounding circumstances either known to or which ought reasonably to have been known or made known to the detaining officer;
(4)accordingly, if a Departmental policy, advice, guideline or instruction is itself unreasonable then a suspicion formed in reliance on such a policy, guideline or instruction may also not satisfy the statutory requirement; and
(5)further, because the “whole of the surrounding circumstances” is relevant to the reasonableness of a suspicion (Hyder at [15](8)), it may also be relevant to consider whether information ought reasonably to have been made available to a detaining officer by others involved in the detention of a person, even if not personally the detaining officer.

Fernando v Commonwealth (No 5) involved false imprisonment of a person who had been detained following cancellation of a visa, but the cancellation was void for denial of procedural fairness. Justice Siopis, dealing with the question of damages, considered that the reasoning in Lumba and Kambadzi about causation in respect of loss was sound and, on the facts, Mr Fernando was going to be detained in any event, with the consequence that he was entitled to nominal damages only. On appeal in Fernando [2014] FCAFC 181 Besanko and Robertson JJ took the same view on the basis that Mr Fernando “could and would have been lawfully detained in any event” saying at [88]:
The primary judge relied on the provisions of the Act rather than evidence to support his conclusion that the appellant could and would have been lawfully detained by an officer performing his or her duty under s 189(1) of the Act (see [96] of his third judgment). We think that he was correct in doing so. The definition of “officer” in s 5 of the Act is very broad, s 189(1) of the Act places an obligation, not a mere discretion, on an officer to detain a non‑citizen in the circumstances envisaged in the section, and, finally, nothing was put to this Court which suggests that any officer would have viewed the cancellation of the appellant’s visa as other than regular and effective.
At [168] Barker J agreed noting that “there is no realistic basis upon which it can be concluded that the appellant would not have been detained”.
CPCF involved different facts with the consequence that the majority of the High Court declined to deal with the issue of damages. Justice Kiefel, however, considered that:
[324] Unlawful detention is a trespass and actionable as a tort regardless of whether the plaintiff has suffered harm. In the present case, had the plaintiff not been detained on the Australian vessel for the period in question, he would have been detained in immigration detention. The circumstances of this case are similar to those pertaining in R (Lumba) v Secretary of State for the Home Department. In that case, the claimants were falsely imprisoned, but the Supreme Court of the United Kingdom held that it was inevitable that they would have been detained in any event, had correct principles and lawful policies been applied. The claimants were held to have suffered no loss or damage as a result of the unlawful exercise of the power to detain and therefore nominal damages only could be awarded.
[325] The plaintiff submits that this court should leave the question as to the extent of any award of damages to be assessed on remitter. However, it seems to me that only one conclusion is possible and the terms of any remitter ought to be made clear. Damages could only be awarded for the infraction of the MP Act. In such circumstances, only nominal damages can be awarded.
The Commonwealth submitted that, if it is asked what could and would have happened had the tort not been committed, the answer is Mr Guo would have been detained in any event. If committed at all, the tort was committed because Mr Guo was detained without lawful justification. This resulted from the fact that the letters notifying Mr Guo of the refusal of his permanent visa did not inform him of the correct time within which a review application could be made, as a result of which the notice was not valid or effective or not a notice within the meaning of the applicable statutory provisions. Had correct procedures been followed each notice would have been effective to bring Mr Guo’s temporary entry permit to an end and he could and would have been detained as an unlawful non-citizen, his permanent visa having been refused on character grounds under s 501. As the Commonwealth put it:
…it is inevitable that the Applicant could and would have been lawfully detained throughout the period. This is so because:
(a)upon receiving proper notification of the decision to refuse his visa application under s 501, the Applicant’s Temporary Visa would have immediately ceased to be in effect;
(b)upon cessation of the Temporary Visa, the Applicant would have become an unlawful non-citizen;
(c)all officers within the meaning of s 189 would thereafter come under a duty to detain the Applicant pursuant to s 189 of the Act. As a result, it is inevitable or virtually inevitable that he would have been detained; and
(d)there is no prospect that the Applicant would have been released from detention once he had been taken into lawful detention. He was not eligible to make an application for a visa. During the course of his detention to date, the Minister has not intervened to exercise his powers under s 195A and 197B of the Act. There is no reason to think that those powers would have been exercised in the counterfactual scenario. The Applicant had been refused a visa on character grounds and, because of that, would always have been the subject of detention.
It is also clear that the Applicant would have been detained in relevantly similar conditions to those in which he was actually detained.
Sub paragraph (d) above contains an important fact. Mr Guo was not able to apply for another visa under s 501E of the Act. Mr Guo had exhausted all possibilities of obtaining a visa. He remained a lawful non-citizen only by reason of the fact that his temporary entry permit continued to subsist until he was properly notified of the decision from 1996 to refuse his application for a permanent visa.
For Mr Guo it was submitted that Fernando [2014] FCAFC 181 is distinguishable as:
(1)Mr Guo was not the subject of a decision to cancel his visa; rather, a decision was made, pursuant to s 501 as it then stood, to refuse to grant to him a transitional (permanent) visa;
(2)Mr Guo held a temporary entry permit which would subsist until notified of the decision not to grant him a permanent visa;
(3)there was, therefore, no decision on the record, regular on its face, which purported to determine Mr Guo’s migration status; and
(4)it cannot, therefore, be said by the Commonwealth that the decision to refuse to grant a transitional (permanent) visa, or the first notification letter, was enough to make it probable (let alone “inevitable”) that an officer carrying out his or her duty would form a reasonable suspicion that Mr Guo was an unlawful non-citizen.
Further, it was submitted for Mr Guo that the question is not what the position would have been had the first notification letter to Mr Guo been valid. In Fernando [2014] FCAFC 181 at [86] the relevant hypothesis for the assessment of damages was explained in these terms:
The relevant counter‑factual is that the appellant had not been unlawfully detained in the first place, and requires the Court to consider what could and would have happened had the tort not been committed.
Accordingly, it was put for Mr Guo, applying Fernando [2014] FCAFC 181, that:
the Court would seek to determine what would have happened if relevant officers had properly considered whether Mr Guo held a visa. For reasons noted above (and in contrast to Fernando) there is no obvious answer to that question. The most likely answer is that they would have realised that he did hold a visa and could not be detained. To hypothesise that somebody in the Department would then have set about changing that position, so that Mr Guo could be detained, is to go further than anything decided in Fernando.
Reliance was also placed on the observations of Barker J at [169] in Fernando [2014] FCAFC 181:
It seems to me that the only basis upon which it could be argued that the appellant would not have been detained is if an assumption is made that the types of decision‑making deficiencies identified by the earlier Full Court would be repeated. I do not consider that any such assumption can be made and indeed that it is inappropriate to make such an assumption.
Finally, according to the submissions for Mr Guo:
the Commonwealth’s nominal damages contention fails on the facts. None of the Commonwealth’s witnesses gave evidence as to what could and would have happened on the relevant counterfactual as framed by the applicant. Instead, their evidence, most of which was struck out by Jagot J, focused on the question what he or she would have done had he or she known that Mr Guo had been given a defective notification and what they think others in the Department would have done. Not only is that evidence irrelevant to the question posed by the relevant counterfactual, it is extremely speculative.
A submission was also put for Mr Guo that Fernando [2014] FCAFC 181 was wrongly decided.
I consider that Fernando [2014] FCAFC 181 is distinguishable on the facts but I nevertheless conclude that the requirement of causation, requires the conclusion on the facts of this case, that if the Commonwealth had not falsely imprisoned Mr Guo it would have lawfully imprisoned Mr Guo for the entirety of the period for which he was unlawfully detained and in precisely the same circumstances. As a result, only nominal damages are recoverable. I consider this necessarily follows from the statutory provisions as they applied to Mr Guo’s circumstances.
First, Mr Guo’s application for a permanent visa had been refused on character grounds in 1996.
Second, there is no question that the provisions of the Act discussed above meant that if Mr Guo was notified as required, of this decision, the effect would be to bring his temporary entry permit to an end, by reason of which he would be an unlawful non-citizen. Any officer aware of these circumstances would necessarily have a reasonable suspicion that Mr Guo was an unlawful non-citizen and be bound to detain him.
Third, the Commonwealth, via the Department, purported to notify Mr Guo of the decision to refuse his permanent visa application. Had all correct procedures been followed (as per Lumba at [253]) Mr Guo’s temporary entry permit would have ceased. It is the fact that correct procedures were not followed (the notice did not correctly identify the time period for review) that meant that Mr Guo remained a lawful non-citizen. That fact is central to the commission of the tort. Damages are to be assessed on the basis that Mr Guo is entitled to be compensated by being put in the position he would have been in had the tort not occurred. On that basis, the notice would have stated the correct time period.
Fourth, Mr Guo in fact exercised his right to apply for refusal of his permanent visa application. There is no reason to infer that the tort had any effect on the fate of this application. The application was dismissed on 3 November 2007 because Mr Guo failed to appear. Mr Guo’s attempt to reinstate the application was refused on 9 July 2004 (Guo and Minister for Immigration and Multicultural Affairs [2004] AATA 729). An application for judicial review of the Tribunal’s decision was dismissed on 10 December 2004 (Guo v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1585).
Fifth, by 2012 Mr Guo’s bridging visa had expired, and he was precluded from applying for another visa by s 501E of the Act.
Accordingly, had the tort not occurred, Mr Guo would have been lawfully detained when his location came to the attention of the Department in February 2012 and would thereafter have remained in detention as an unlawful non-citizen. This is because he would have held no visa at that time, his bridging visa having expired on 1 July 2011 (granted to enable various applications to be resolved) and his temporary entry permit, on this analysis, having ceased in October 1996 on effective notification of the refusal of his application for a permanent visa.
From this it follows that Mr Guo is also not entitled to any aggravated damages which are founded on the same compensatory principle as ordinary damages (Fernando [2014] FCAFC 181 at [97]). Exemplary damages, which are intended to punish a defendant’s morally reprehensible action (Uren v John Fairfax & Sons Pty Limited (1966) 117 CLR 118, at 149), are in a different category. It was acknowledged for Mr Guo that the remedy is an exceptional one generally serving to punish a defendant for “conscious wrongdoing in contumelious disregard of another’s rights” (Whitfield v De Lauret and Company Limited (1920) 29 CLR 71 at 77, Gray v Motor Accident Commission [1998] HCA 70; (1998) 196 CLR 1 at [14]).
For the period from 12 August 2014 (in fact, 14 August 2014 when the application to the High Court was served) to 26 September 2014 I have found that any continuing suspicion that Mr Guo was an unlawful non-citizen was not reasonable for reasons separate from and additional to the balance of his first period of detention. However, the actions of the officers or, to be accurate, their lack of action in falling to check Mr Guo’s status for themselves immediately for the period of six weeks was not in conscious disregard of Mr Guo’s rights. At worst, it appears to have been based on ignorance of legal obligations or an incorrect view that as long as legal advice was not yet obtained Mr Guo could continue to be detained. While concerning, the conduct was not morally reprehensible. It was not in conscious disregard of Mr Guo’s rights. Rather, the disregard appears to have resulted from unconsciousness or lack of awareness.
For the period from 4 or 5 until 6 March 2015 the position is different. Those involved in this episode knew by the evening of 5 March 2015 that the second notification letter was defective but did not take any step to ensure that Mr Guo was immediately released. Rather, Mr Guo continued to be detained until 6 March 2015 when a fresh notice was served, rendering him liable to lawful detention. It is apparent that the solicitors for the Department received the letter from Mr Guo’s solicitors explaining why the second notification letter was defective on 4 March 2015. That letter was in the hands of the Department’s legal officers by 11.16 am on 5 March 2015, as at that time a lawyer sent an email (which is subject to a claim for legal professional privilege) about Mr Guo. It is apparent from the email communications within the Department that it was recognised by some time on 5 March 2015 (and, from the communications, before 7.23pm) that the second notification letter was defective, the inevitable consequence of which was that Mr Guo continued to hold a temporary entry permit. Instead of arranging Mr Guo’s immediate release the energies of the Department were focused on preparing a third notification letter to be served on Mr Guo while he remained in detention. The only officer to express any apparent concern about Mr Guo continuing to be detained was Mr Campbell. He was right to do so. I infer that the personnel in the Department involved in these events knew by the evening of 5 March 2015 that Mr Guo was a lawful non-citizen and not liable to be detained. He should have been released immediately. He was not released but served with the third notification letter at 4.05pm on 6 March 2015. Mr Guo thus continued to be unlawfully detained by the Commonwealth for at least 21 hours in circumstances where it must have been known by a number of Departmental personnel including the Director/Principal Legal Officer of the Framework and Training Section, who did not give evidence, that this was unlawful.
I am satisfied that this constituted a knowing, deliberate and flagrant disregard of Mr Guo’s rights. I do not agree that it was necessary for it to be expressly put in cross-examination to the officers involved who did give evidence, such as Mr Dwyer, that this conduct would found a claim for exemplary damages. The person who clearly knew Mr Guo was being unlawfully detained, the then Director/Principal Legal Officer of the Framework and Training Section, was not called to give evidence. Mr Dwyer, who was copied into the emails, could not recall when he read them. Mr Dwyer accepted that the Department knew on the evening of 5 March 2015 that Mr Guo was being unlawfully detained and should be released as soon as possible. The Commonwealth called no evidence explaining why he was not released that evening or the following morning. The obvious inference, which I draw, is that it was decided by officers including the Director/Principal Legal Officer of the Framework and Training Section, that it was expedient to continue to unlawfully detain Mr Guo to enable the third notification letter to be prepared. This was conscious wrongdoing. It was in flagrant disregard of Mr Guo’s rights. It merits an award of exemplary damages.
The Commonwealth noted that in Okwume the applicant was awarded $5000 for one night’s unlawful imprisonment which included the initial shock of arrest. In Mr Guo’s case he was already in detention and liable to be detained at any time if correctly notified of the refusal of his application for a permanent visa. These facts may be acknowledged but I consider them in a different light from the Commonwealth to the extent exemplary damages are in issue. The Commonwealth knew that it had detained Mr Guo when he was not an unlawful non-citizen for two years between 2012 and 2014. As at the evening of 5 March 2015 it knew it had detained him yet again for three months when he was not an unlawful non-citizen. Its officers, I infer, knowingly and in conscious disregard of Mr Guo’s rights, chose expediency for the Department above the rule of law and the right of the individual to be imprisoned only with lawful justification. That choice was reprehensible. It justifies an award of damages which achieves the objects of both punishment and deterrence. It is of the utmost importance that those in positions of such power always choose the law over expediency; to make the choice of expediency when the liberty of an individual is at stake must not be permitted. The primacy of the rule of law over any such consideration must be safeguarded and vindicated by an award which achieves the dual objects of punishment and deterrence. Even in the case of a person such as Mr Guo, who garners little personal sympathy given his choices in life and patterns of anti-social and criminal conduct by which he squandered the opportunity to make a positive contribution to Australian society, the rule of law must remain paramount.
I consider that an amount of $35,000 is necessary to achieve these objectives in the circumstances of this case.
If my conclusions above about nominal damages otherwise being applicable are incorrect then I would also need to assess general damages and aggravated damages. I do so briefly given that my primary conclusions are that no such damages are payable. Apart from the facts already noted, part of the case for Mr Guo was that he did not receive adequate mental health care while detained and his mental health deteriorated. This involved competing evidence from Dr Lewin, a psychiatrist, and Ms Lander, a psychologist. Dr Lewin diagnosed Mr Guo as suffering from a delusional disorder which was not exacerbated by detention (but more likely caused or exacerbated by earlier drug use). Ms Lander diagnosed Mr Guo as suffering from an adjustment disorder and depression which were exacerbated by his detention. Dr Lewin explained that the reason he would not also diagnose an adjustment disorder and depression is that delusional disorder is a higher order diagnosis (which subsumes all lower order symptoms), it also being essential to recognise that most (perhaps all) people are anxious and suffer some degree of depressed mood while incarcerated. Dr Lewin accepted that, as with nearly everyone, Mr Guo suffered because he was incarcerated but concluded that his symptoms would not warrant psychiatric diagnosis or treatment.
To the extent necessary to say so Dr Lewin’s evidence was far more persuasive than that of Ms Lander. Dr Lewin has extensive experience in dealing with the psychiatric conditions of imprisoned persons, Ms Lander does not have equivalent experience. Dr Lewin had the advantage of an accurate case history, Ms Lander did not. The inaccuracies in the version of events which Mr Guo appears to have provided to Ms Lander were significant. Indeed, the impression Ms Lander had of Mr Guo’s life history in Australia before 2012 appears to have been largely inaccurate. She did not know about his prior drug use. She did not know about his prior criminal history. She did not know about his prior experiences of detention, both in prison and immigration detention. She assumed his life before 2012 exhibited a degree of conventional success and stability, based on information Mr Guo had given her, which it did not. Contrary to the information on which Ms Lander relied, as Dr Lewin said, Mr Guo’s earlier life involved a pattern of disturbance including use of the drug ice in his mid-50s which was a “red flag” for an existing disturbance, as was his history of anti-social conduct.

I accept Dr Lewin’s evidence. This does not mean that I consider that Mr Guo did not suffer anxiety, loneliness, isolation and low mood in detention. However, I consider that his suffering was typical of any person who is detained. Mr Guo may well have suffered from a psychiatric condition known as a delusional disorder (a belief that he had been the victim of malicious conduct by a police officer many years previously, which appeared to be false) but, as Dr Lewin said, this was a fixed belief which was “encapsulated”, meaning it did not apparently affect any component of Mr Guo’s functioning. Further, being detained did not cause this fixed belief (the belief pre-dated these periods of detention) and did not exacerbate it. The belief remained encapsulated.
It was submitted for Mr Guo that:
Assessing damages in false imprisonment cases is a difficult exercise, not only for the reasons given by Hodgson JA in Riley, but also because, as Spigelman CJ said in Ruddock v Taylor (2003) 58 NSWLR 269 at 279 [49] (Ruddock (NSWCA)), “[d]amages for false imprisonment cannot be computed on the basis that there is some kind of applicable daily rate”. His Honour went on to say that, while a “substantial proportion” of the ultimate award must be given for what has been described as “the initial shock of being arrested”, as the term of imprisonment extends “the effect upon the person falsely imprisoned does progressively diminish.” This may not be correct in every case, however, and assessment must take into account the particular circumstances. Here, there is evidence of a psychological condition having developed as a consequence of detention.
But for the last sentence being inapplicable given my conclusions above, I accept this submission. Further, it is relevant to note that in State of New South Wales v Riley [2003] NSWCA 208; (2003) 57 NSWLR 496 at [131] this was said:
It is extremely difficult to quantify damages for hurt feelings. In cases of hurt feelings caused by ordinary wrong-doing, of a kind consistent with ordinary human fallibility, the court must assess damages for hurt damages neutrally, and aim towards the centre of the wide range of damages that might conceivably be justified. However, in cases of hurt to feelings caused by wrong-doing that goes beyond ordinary human fallibility, serious misconduct by the defendant has given rise to a situation where it is difficult to quantify appropriate damages and thus where the court should be astute to avoid the risk of under-compensating the plaintiff, so the court is justified in aiming towards the upper limit of the wide range of damages which might conceivably be justified.
In the present case, if I am incorrect about only nominal and exemplary damages being recoverable for the period of the evening of 5 March to 4.05pm on 6 March, then (apart from that period), this is a case where ordinary human fallibility caused Mr Guo’s unlawful imprisonment. For Mr Guo it was submitted that the general damages ought to be assessed having regard to a number of factors including the following which I would generally accept:
(1)the unlawful arrest and deprivation of liberty from 29 February 2012 to 26 September 2014 (a period of 940 days) and the unlawful arrest and deprivation of liberty from 3 December 2014 to 6 March 2015 (a period of 93 days); and
(2)Mr Guo suffered hurt or injured feelings, indignity, mental distress, disgrace or humiliation as a result of the deprivation of liberty caused by regular pat-down searches, frequent searches of his room, seizure of medication, confiscation of his mobile telephone, which contained a photograph of one of Mr Guo’s sons and had sentimental value to him, denial of certain visits and information, and being separated from his son during his son’s suicide attempts.
In respect of the matters noted in sub paragraph (2) above, however, I also accept the Commonwealth’s submission that these were ordinary incidents of being held in immigration detention. There is no evidence that any action was taken or not taken other than in the ordinary course of the management of Mr Guo’s detention. I do not accept that it was inappropriate for Mr Guo to have been held in maximum security. Given Mr Guo’s history, and the information which indicated his potential involvement in organised crime relating to drugs and his time in prison, it was reasonable for Mr Guo to be detained in a maximum security setting.
As discussed I do not accept Mr Guo was handcuffed on 3 December 2014. Nor do I accept that he did not receive adequate mental health treatment while being detained.
The submissions for Mr Guo noted the following examples:
a)In Goldie (No 2), French J awarded Mr Goldie $22,000 for having been detained for three days. That award comprised $5,000 for wrongful arrest, $2,000 for conduct during the detention and $15,000 for the deprivation of liberty (including an allowance for the continuing humiliation and indignity associated with the detention).
b)In Ruddock (NSWCA), Mr Ruddock [sic, Mr Taylor] was awarded $116,000 in general damages for a period of 316 days in detention. (The award was overturned on appeal but not because of any error in assessment.)
c)In Nye v State of New South Wales [2004] Aust Torts Reports 81-725, Mr Nye was awarded general damages of $100,000 in respect of a period of 16 months’ detention.
d)In Fernando v Commonwealth of Australia (No 5) [2013] FCA 901, on the hypothesis that Mr Fernando was entitled to more than nominal damages, Siopis J would have awarded $265,000 for 1,203 days in unlawful detention. It should be noted that his Honour had awarded exemplary damages in the amount of $25,000.
It was also submitted that a substantial proportion of the ultimate award ought to be given for “the initial shock of being arrested” [Thompson v Commissioner of Police of the Metropolis [1998] QB 498 at 515 per Lord Woolf MR, cited by Spigelman CJ in Ruddock v Taylor (2003) 58 NSWLR 269 at 279 [49]. See also Goldie v Commonwealth of Australia (No 2) (2004) 81 ALD 422 at 428 [16] per French J; Fernando v Commonwealth of Australia (No 5) [2013] FCA 901 at [108] per Siopis J], particularly in respect of the arrest on 3 December 2014, which “came completely out of the blue”. While the principles may be accepted Mr Guo was already in custody when he was first detained. Further, it is not the case that Mr Guo believed his temporary entry permit remained in force due to the errors discussed in this case. The errors appear to have been discovered by Mr Guo’s lawyers. Mr Guo knew he had been refused a permanent visa on the grounds of not having good character. He held a bridging visa to enable various applications to be pursued which he knew expired in 2011. As far as Mr Guo was concerned, he must have thought he did not hold a valid visa from that time. As such, immigration detention could not have been out of any reasonable apprehension of his circumstances. Nor is it apparent to me why his detention on 3 December 2014 came “out of the blue” when he knew his permanent visa application had been refused and knew that it was only an error in the first notification letter which meant he had to be released from detention in 2014. A moment’s thought would have caused Mr Guo to realise that his permanent visa application having been refused and his efforts to obtain another visa having already been exhausted, he was liable to proper notification of the refusal of his application for a permanent visa from 1996 which would bring his temporary entry permit to an end. Given that his application for a permanent visa had been refused on character grounds, there was no reason to imagine that no step would be taken to complete the statutory process by giving him proper notification of the 1996 decision. Indeed, it was necessary and inevitable that the Commonwealth would try to achieve proper notification because this would complete the process as the Act required at all times from the date the refusal decision was made in 1996.
If, contrary to my conclusions, the compensatory principle does not confine Mr Guo to nominal damages (and exemplary damages for the confined period of the evening of 5 March to 2015 to the afternoon of 6 March 2015) then general damages are to be assessed with regard to the above matters.
I note that in Fernando [2014] FCAFC 181 Besanko and Robertson JJ at [113] characterised the primary judge’s award of general damages of $265,000 for 1,203 days in unlawful detention to be low, but not so low as to involve error. In common with Mr Guo’s first period of detention, Mr Fernando was detained whilst in custody (at the end of his prison sentence) so the shock of further detention, such as it was, occurred in a setting of imprisonment. Despite having commenced proceedings to have the decision cancelling his visa set aside on 2 October 2003 the Minister did not consent to an order setting aside the cancellation until 24 January 2007. Mr Fernando remained in detention throughout that period, being transferred from Perth to Baxter immigration detention centres.
In common with Siopis J in Fernando v Commonwealth of Australia (No 5) I do not consider Mr Guo’s case analogous to that of Mr Nye in Nye v New South Wales [2003] NSWSC 1212 where the circumstance of Mr Nye’s arrest (at home, in bed at night, 40 police officers in assault gear, a helicopter overhead, handcuffed and taken from his house in his pyjamas, with shouting, physical aggression and coarse language used, including the handcuffing of Mr Nye’s wife) were correctly described as “likely to strike terror into the heart of almost any person” (Fernando v Commonwealth of Australia (No 5) at [113]). It is also relevant that Mr Nye was acquitted of the charges of murder and conspiracy to supply cannabis resin (brought on the basis of fundamentally flawed informer information), having spent six months in prison awaiting trial. Mr Nye, who suffered permanent psychiatric injury as a result, was awarded $387,500 as damages for false imprisonment, in addition to damages for malicious prosecution.
Also in common with Siopis J in Fernando v Commonwealth of Australia (No 5) I consider the following observations to be relevant (at [122]):
Further guidance on the quantum of damages for loss of liberty for a long period arising from wrongful imprisonment can be obtained from the case of Ruddock (NSWCA). In that case at first instance, Taylor v Ruddock (unreported, District Court of New South Wales, Murrell DCJ, 18 December 2002) (Ruddock (NSWDC)) the New South Wales District Court awarded the plaintiff, Mr Taylor, the sum of $116,000 in damages in respect of wrongful imprisonment, consequent upon his detention following the cancellation of his permanent residency visa on character grounds. Mr Taylor was detained for two separate periods. The first period was for 161 days and the second period for 155 days. In that case, because Mr Taylor’s convictions were in relation to sexual offences against children, Mr Taylor was detained in a state prison under a “strict protection” regime, and not in an immigration detention centre. The detention regime to which Mr Taylor was subjected in the state prison was described as a “particularly harsh one”.
I note, however, that in Ruddock v Taylor (2003) 58 NSWLR 269; [2003] NSWCA 262 Spigelman CJ considered the award to be “modest”, requiring serious consideration to be given to the question whether it was inadequate (at [47]). Spigelman CJ noted at [48] that:
The period for which the Respondent was deprived of his liberty was a very long one. In Spautz [Spautz v Butterworth (1996) 41 NSWLR 1] this Court, allowing an appeal against inadequacy, decided that an appropriate award of general damages was $75,000 for a person who was imprisoned for 56 days. The Respondent's period of detention, much of it in prison, was for two periods of 161 and 155 days. Obviously there are differences in the situations between Dr Spautz and the Cross-Appellant.
In Spautz Clarke JA considered damages for false imprisonment, referring to McGregor on Damages at 14-15 in these terms:
McGregor on Damages, 15th ed (1988) par 1619 says:
The details of how damages are worked out in false imprisonment are few: generally it is not a pecuniary loss but a loss of dignity and the like, and is left much to the jury's or judge's discretion. The principal heads of damage would appear to be the injury to liberty, ie. the loss of time considered primarily from a non-pecuniary viewpoint, and the injury to feelings, ie. the indignity, mental suffering, disgrace and humiliation, with any attendant loss of social status. This will all be included in the general.
At 18 Clarke JA (with whom Priestley and Beazley JJA agreed) said:
Having regard to those factors and the fact that the appellant had no criminal record when he was unceremoniously cast into a prison in which he was to remain for fifty-six days it seems to me that an appropriate award of general damages is $75,000 (to include the sum of $200 for economic loss).
Mr Guo was falsely imprisoned for a total of 1033 days, in two periods of 940 and 93 days each. He had been imprisoned previously. His first period of detention involved an arrest whilst in custody, but his second was effected while he was at home. On both occasions, he was not in the position of a person from whom being detained as s suspected unlawful non-citizen would be a shock. While Mr Guo was shocked, as I have said, a moment’s reasonable thought would have caused him to realise he was highly likely to end up in immigration detention after his bridging visa expired in mid-2011. This said, on the current hypothesis, he is entitled to be compensated for a lengthy period of false imprisonment. Having regard to the decisions referred to and the particular circumstances of Mr Guo’s case if he is entitled to more than nominal damages I would assess general damages including for all hurt, indignity, shock from all the facets of his detention in the sum of $380,000.
This leaves the question of aggravated damages. In Spautz Clarke JA also dealt with the issue of aggravated damages in a false imprisonment case. At 15 Clarke JA referred to the observations of Lord Diplock in Cassell & Co Ltd v Broome [1972] AC 1027 at 1124 about:
Additional compensation for the injured feelings of the plaintiff where his sense of injury resulting from the wrongful physical act is justifiably heightened by the manner in which or the motive for which the defendant did it. This Lord Devlin calls ‘aggravated damages’
At 16 Clarke JA again referred to McGregor on Damages (par 1623) as follows:
The manner in which the false imprisonment is effected may lead to the aggravation or mitigation of the damage, and hence of the damages…
At 17-18 Clarke JA said:
The necessary conclusion is that where a plaintiff is entitled to compensatory damages for wrongful arrest or false imprisonment, it is proper for the Court, in assessing ordinary compensatory damages, to take into account the whole of the conduct of the defendant to the time of verdict which may have the effect of increasing the injury to the person's feelings. Such matters might include the absence of apology and the reaffirmation of the truth of the matters. However, for a plaintiff to be entitled to aggravated damages, he or she must show that the conduct of the defendant was neither bona fide nor justifiable.
I am not satisfied that any aspect of Mr Guo’s imprisonment or of the Commonwealth’s conduct, other than Mr Guo’s detention between the evening of 5 March and the afternoon of 6 March 2015 for which an award of exemplary damage has been made, constitutes conduct of a kind to justify an award of aggravated damages.
13. Conclusions
Mr Guo was falsely imprisoned by the Commonwealth. He should be awarded nominal damages in the sum of $1.00 and exemplary damages in the sum of $35,000 for the period between the evening of 5 March 2015 and the afternoon of 6 March 2015. I propose to ask the parties to submit agreed or competing orders within seven days so that each may consider if any submission about the provisions of the Civil Liability Act is necessary or not.

I certify that the preceding two hundred and sixty-four (264) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Jagot.
Associate:
Dated: 24 November 2017

File number(s):	NSD 1142 of 2015
Judge(s):	JAGOT J
Date of judgment:	24 November 2017
Catchwords:	MIGRATION – visa application – refusal of permanent visa on character grounds – defective notifications – temporary entry permit still in force resulting in periods of unlawful detention of a lawful non-citizen – whether detaining officers held reasonable suspicion that detained person was an illegal non-citizen TORTS – false imprisonment – detention under s 189 of the Migration Act 1958 (Cth) – whether detaining officers held reasonable suspicion that detained person was an illegal non-citizen – whether lawful justification for actions DAMAGES – nominal damages – appellant would have been lawfully detained as an unlawful non-citizen if notices not defective DAMAGES – exemplary damages – period of unlawful detention known to Commonwealth – appellant detained unlawfully – exemplary damages awarded for purpose of punishment and deterrence
Legislation:	Administrative Appeals Tribunal Act 1975 (Cth) s 29 Migration Act 1958 (Cth) ss 5, 13, 14, 15, 37, 66, 189, 194, 195, 196, 500, 501, 501E Migration Legislation Amendment (Strengthening of Provisions relating to Character and Conduct) Act 1998 (Cth) s 32 Migration (1993) Regulations 1992 (Cth) Sch 3, rr 2.8 Migration Regulations 1994 (Cth) Sch 2 Civil Liability Act 2002 (NSW) ss 3B, 5, 26A
Cases cited:	Al-Kateb v Godwin [2004] HCA 37; (2004) 219 CLR 562 Cassell & Co Ltd v Broome [1972] AC 1027 Chan Ta Srey v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1292; (2003) 134 FCR 308 Commonwealth of Australia v Fernando [2012] FCAFC 18; (2012) 200 FCR 1 CPCF v Minister for Immigration and Border Protection [2015] HCA 1; (2015) 255 CLR 514 Fernando v Commonwealth [2014] FCAFC 181, (2014) 231 FCR 251 Fernando v Commonwealth (No 5) [2013] FCA 901 George v Rocket (1990) 170 CLR 104 Goldie v Commonwealth of Australia [2002] FCA 433; (2002) 117 FCR 566 Gray v Motor Accident Commission [1998] HCA 70; (1998) 196 CLR 1 Guo and Minister for Immigration and Multicultural and Indigenous Affairs [2004] AATA 729 Guo v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1585 Houda v New South Wales [2005] NSWSC 1053 Hyder v Commonwealth of Australia [2012] NSWCA 336; (2012) 217 A Crim R 571 Kostopoulos v Commonwealth of Australia [2012] NSWSC 1534 Maritime Union of Australia v Minister for Infrastructure and Regional Development [2015] FCAFC 187 Minister for Immigration and Multicultural and Indigenous Affairs v VFAD [2002] FCAFC 390; (2002) 125 FCR 249 Minister for Immigration and Citizenship v SZIZO [2009] HCA 37; (2009) 238 CLR 627 Nye v New South Wales [2003] NSWSC 1212 Okwume v Commonwealth [2016] FCA 1252 Plaintiff M168/10 v The Commonwealth of Australia [2011] HCA 25; (2011) 279 ALR 1 Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 R (Kambadzi) v Secretary of State for the Home Department [2011] 1 WLR 1299 Re Woolley; Ex parte Applicants M276/2003 (2004) 225 CLR 1; [2004] HCA 49 Regina (Lumba) v Secretary of State for the Home Department [2012] 1 AC 245 Ruddock v Taylor [2005] HCA 48; (2005) 222 CLR 612 Ruddock v Taylor (2003) 58 NSWLR 269; [2003] NSWCA 262 Spautz v Butterworth (1996) 41 NSWLR 1 State of New South Wales v Riley [2003] NSWCA 208; (2003) 57 NSWLR 496 SZOFE v Minister for Immigration and Citizenship [2010] FCAFC 79; (2010) 185 FCR 129 Thompson v Commissioner of Police of the Metropolis [1998] QB 498 Uren v John Fairfax & Sons Pty Limited (1966) 117 CLR 118 VHAF v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 1243 Whitfield v De Lauret and Company Limited (1920) 29 CLR 71
Date of hearing:	27, 28, 29, 31 March 2017, 11 August 2017
Registry:	New South Wales
Division:	General Division
National Practice Area:	Administrative and Constitutional Law and Human Rights
Category:	Catchwords
Number of paragraphs:	264
Counsel for the Applicant:	G Kennett SC and BD Kaplan
Solicitor for the Applicant:	Ren Zhou Lawyers
Counsel for the Respondent:	G Johnson SC and P Knowles
Solicitor for the Respondent:	Maddocks Lawyers