What protection visa? … Man held in immigration detention by the government after he had been granted a protection visa … Federal Court orders immediate release … Minister for Immigration birched in fulsome judicial rebuke … Ministerial defiance of the law … Disgraceful conduct … Habeas corpus application opposed by the minister on spurious grounds … Zoe Mitchell reports
It was only after a Federal Court last month ruling by Justice Michael Wigney (of Rush fame) that an Afghan asylum seeker was released from immigration detention, accompanied by this stinging judicial rebuke of the minister for immigration:
“The conduct of the minister in this case, on just about any view, has been disgraceful. Putting aside the fact that PDWL remains in detention, despite having been granted a visa on 11 March 2020, that is, six days prior to the hearing of these applications, the minister appears to have willingly and flagrantly failed to comply with the orders made by Perry J on 12 March 2020. That order required the minister to file an affidavit by an appropriate officer in his department with actual knowledge of why PDWL was still in immigration detention. The affidavit filed in purported compliance with that order contained no such explanation. Rather, it sought to conceal any explanation behind the cloak of legal professional privilege.”
The Hazara asylum seeker, identified in the case as PDWL, had been denied a visa by a delegate of the minister on character grounds.
The AAT reviewed and overturned that decision, and on March 11, 2020 granted the applicant a safe haven enterprise visa.
The minister applied for judicial review of the AAT’s decision, saying it was wrong and beyond jurisdiction. An interlocutory application came on before Justice Melissa Perry on March 12.
At this point PDWL was still in immigration detention even though he had his visa.
Justice Perry was concerned about what was happening to PDWL and asked the department to file and serve by March 16 an affidavit as to whether he was still detained and, if so, why.
Five days later the matter came back to court and the department was either dragging its feet or had decided the Hazara Afghan should not be released from the Yongah Hill detention centre in Western Australia.
By March 16, PDWL had obtained pro bono legal assistance and an application for habeas corpus was served.
Marian Otigwoheh Agbinya, an acting assistant secretary in the department’s litigation branch, filed an affidavit in purported compliance with Perry’s orders. She deposed:
“I confirm that I have actual knowledge of why the first respondent [PDWL] remains in immigration detention. However, to provide an explanation of the reason why the first respondent remains in immigration detention would reveal legal advice that is subject to legal professional privilege.”
The habeas application and the minister’s interlocutory application for expedition came before Wigney as the duty judge. He remarked:
“It is difficult, if not impossible, to imagine how the minister, or anyone else, could have sensibly formed the view that this affidavit complied with Perry J’s order. It provided no explanation whatsoever for why PDWL remained in immigration detention.”
Wigney thought the the minister’s arguments for expedition were “not … clear or strong as to suggest the tribunal’s decision be quashed or set aside without further ado”.
It was at this point that Wigney made his remarks about the “disgraceful” conduct of the minister in this case. An explanation for the continuing detention of PDWL easily could have been given without involving the disclosure of privileged information.
The only reason he remained in detention was that someone in the department thought the tribunal’s decision was wrong and they were going to keep holding him until it was overturned.
Further, the minister opposed the habeas application, arguing there was no jurisdiction and his continued detention was lawfully justified under s.189(1) of the Migration Act.
Wigney smartly rejected any idea the court’s jurisdiction was ousted by s.476A of the Migration Act. “There is no substance in the minister’s submission” because this is not an “application in relation to a migration decision”.
Being granted a visa by the tribunal, PDWL was no longer an unlawful non-citizen. The AAT decision is not a nullity until a court sets it aside and it certainly isn’t a nullity because some hypothetical officer of the minister’s department thinks that a court might eventually declare it to be so.
Even if the minister had a reasonable arguable case, that in itself could not justify PDWL’s continued detention.
PDWL’s release, forthwith, was ordered. With costs.