The s 119(1)(a) ground (grounds 1 and 4, and 3)
184 The Commonwealth's grounds 1 and 4 deal with this matter. Ground 1 alleges denial of procedural fairness by the primary judge in considering and determining the existence of an error, by reference to the terms of s 119(1)(a), in Mr Andersson's decision to cancel Mr Okwume's visa. Separately to the alleged denial of procedural fairness, ground 4 challenges the correctness of her Honour's conclusions. Ground 3 of the Commonwealth's notice of appeal is also relevant.
185 The lawfulness of Mr Andersson's cancellation decision under s 116, read with s 119(1)(a) was considered by the primary judge in the context of the false imprisonment claim by Mr Okwume, because if his visa was not lawfully cancelled he would not have been, in law and in fact, an unlawful non-citizen and the only question would be whether and in what circumstances he could have been "reasonably suspected" of being one for the purpose of s 189 of the Migration Act. That, of course, is the point of distinction made by the plurality in Ruddock v Taylor [2005] HCA 48; 222 CLR 612 at [27].
186 In Taylor, the plurality explained at [40] that, in determining whether a suspicion was "reasonable", the 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" (my emphasis). Their Honours explained at [41] that, in making this determination, there is to be no distinction drawn between what is later discovered to be a mistake of fact and what is later discovered to be a mistake of law. As the following passage from Taylor at [45] reveals, those distinctions are not always clear:
The second reason to reject the contention is that there would be many cases under s 189 in which a distinction between mistake of law and mistake of fact could not readily be drawn, if drawn at all. Reference to cases like Collector of Customs v Agfa-Gevaert Ltd provides ready illustration of the difficulties. Especially is that task difficult where, as here, the subject matter of the relevant suspicion is a statutory status - being an unlawful non-citizen. Errors about the conclusion cannot safely be divided between errors of law and errors of fact. Often, perhaps much more often than not, the error will be one of mixed law and fact.
187 In Taylor, the officers who exercised the power under s 189 to detain Mr Taylor and keep him in detention were not the same individuals as those who had cancelled Mr Taylor's visa, unlawfully as it turned out. The cancellation decisions were both Ministerial decisions. Mr Taylor's visa had twice been cancelled on character grounds, and those cancellation decisions had twice been set aside by the High Court. Following each cancellation decision, Mr Taylor was detained under s 189, kept in detention, and then released when the cancellation decision was set aside. It was for those periods he made claims of false imprisonment. At [49]-[50], the plurality dealt shortly and firmly with the submission that on either occasion, the jurisdictional error affecting the cancellation decision flowed through to affect the reasonableness of the officers' suspicions for the purposes of s 189:
At the trial of these proceedings, those officers who had been responsible for effecting the respondent's detention gave unchallenged evidence of the steps each had taken before detaining the respondent. Each officer had been provided with what, on its face, appeared to be a regular and effective decision of the Minister to cancel the respondent's visa. Each officer checked whether the respondent held any other visa. Upon finding that he did not, the officer concerned detained the respondent.
Plainly, each suspected that the respondent was an unlawful non-citizen. It was not suggested that either had acted in bad faith. The conclusion that each reasonably suspected that the respondent was an unlawful non-citizen follows inevitably.
188 The circumstances of Mr Okwume's visa cancellation by Mr Andersson were different from those in Taylor in one key respect. Mr Andersson was both the officer responsible for cancelling Mr Okwume's visa and the officer who initially exercised the power in s 189 to detain him. Nevertheless, as I explain below, I do not consider that circumstance permits the Court to attribute to a reasonable officer in the position of Mr Andersson the legal knowledge the primary judge was prepared to attribute.
189 I turn to the relevant findings of the primary judge. Her Honour set out her understanding of the applicable principles, relying on Taylor, and Goldie v Commonwealth of Australia [2002] FCAFC 100; 117 FCR 566. At [119], her Honour set out what she considered could be "distilled" from the reasons of Gray and Lee JJ in Goldie at [4]-[7] about the phrase "reasonably suspects" in s 189. For present purposes, the importance of what Gray and Lee JJ said at [4]-[7] lies, in my opinion, in understanding that their Honours were concentrating on what factual matters might, or might not, be apparent (or should be apparent) to an officer considering exercising the s 189 power. Their Honours said:
4 The definitions of the words "suspect" and "suspicion" in the Macquarie Dictionary make it plain that a suspicion may be formed "with insufficient proof or with no proof", or "on little or no evidence", or "on slight evidence or without evidence". By itself, the word "suspects" would be capable of being construed to include the formation of an imagined belief, having no basis at all in fact, or even conjecture. Plainly, to empower an arrest on the basis of an irrational suspicion would offend the principle of the importance of individual liberty underlying the common law. It would also allow the possibility of arbitrary arrest, with the consequence that Australia would be in breach of its international obligations pursuant to Art 9 of the International Covenant on Civil and Political Rights done at New York on 19 December 1966. To avoid these consequences, the word "reasonably" has been placed before the word "suspects" in s 189(1). The adverb makes it clear that, 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.
5 The phrase "reasonably suspects" is used as an alternative to "knows". Before an officer could know that a person is an unlawful non-citizen, the officer would have to have reached a level of satisfaction of that fact approaching certainty. If, as in the present case, the person concerned were not an unlawful non-citizen, because he or she was the holder of a visa entitling him or her to be in Australia, it would be impossible for the officer to know the contrary. The context of the phrase "reasonably suspects" suggests that something substantially less than certainty is required. Reasonable suspicion, therefore, 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.
6 It is trite to say that what is reasonable in a particular case depends upon the circumstances of that case. It is worth remembering, however, that all of the circumstances must be considered. If, as in the present case, an officer is aware of conflicting facts, the reasonableness of any suspicion formed by that officer must be judged in the light of the facts available to him or her at the particular time. It may be that the existence of a particular fact would ground a reasonable suspicion in the mind of the officer if it were the only fact known to him or her. If, at the time of forming the suspicion, the officer is aware of conflicting facts, it may not be reasonable simply to discard those facts and to form a suspicion on the basis of the single fact capable of supporting such a suspicion. That is, the 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. That, of course, is consonant with the serious act the officer is empowered to carry out. Section 196 operates upon a person detained under s 189 who is an unlawful non-citizen, not upon a person reasonably suspected of being an unlawful non-citizen. The scheme contemplated under the Migration Act is indefinite detention pending removal or deportation under administrative fiat. It is not detention for the purpose of curial review or determination of status. These provisions confirm that the appropriate construction of s 189 is that 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.
7 One further consideration should be mentioned. A suspicion that is not grounded in fact to the point of becoming reasonable does not become reasonable because of a perceived need to act quickly. In the present case, the fact that Mr Cain knew that the appellant was about to be dismissed from his employment by Fluor Daniel Pty Ltd (Fluor Daniel), and that he would be at the premises of that company at a particular time, did not bear upon the reasonableness of the suspicion. It created precisely the situation in which the need for a suspicion to be grounded in fact to the point of being reasonable became even more acute than normal, so that precipitate action, based on a misapprehension, might be avoided. The fact that the appellant was employed at a significant level with a national employer suggested that the appellant held a visa permitting him to obtain such employment.
190 At [130] of her reasons, the primary judge said:
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.
191 With respect to the primary judge, this approach goes further than the High Court's decision in Taylor. To ask whether a reasonable person in the officer's position should have been "put on notice" that a cancellation decision was "irregular or ineffective" is not derived from Taylor. I also consider this approach travels beyond what the Full Court said in Goldie, in particular at [4]-[7], which are the passages identified by the primary judge. The material facts in Goldie concentrated on the nature and extent of searches undertaken by a Departmental officer. The officer looked over computer records relating to the appellant and found no record of the appellant holding a current and valid visa. The Full Court set out the relevant facts at [9]-[11]:
9 The computer record that Mr Cain viewed on 24 February 1998 showed that the last visa issued to the appellant had been issued on 24 November 1995 and had ceased to be in effect on 27 February 1996. Plainly, it was not an up-to-date record. Indeed, the data perused by Mr Cain before he took action was only a partial search of the relevant record, in that the search related to data obtained from immigration cards filled out by the appellant on movements to and from Australia. It did not purport to be a search of a record of visas granted after the appellant entered the country. Furthermore, it was not suggested that Mr Cain made any search of the appellant's file to ascertain whether visas had been given extended effect by operation of the provisions of the Migration Act or the Migration Regulations 1994 (Cth). Mr Cain had received from the fifth respondent, Mr Gregg, a copy of the file of the Department of Immigration and Multicultural Affairs (the Department) relating to the appellant, a copy of the most recent decision of the Administrative Appeals Tribunal relating to the appellant and a memo suggesting that Mr Cain might consider cancellation of a current visa held by the appellant. Mr Gregg was an officer in the Legal Services and Litigation Branch of the Department in Canberra. As an officer, he was under precisely the same duty to detain a person whom he knew or reasonably suspected to be an unlawful non-citizen as was Mr Cain. Yet he was not instructing Mr Cain to act on such a reasonable suspicion. He was suggesting that Mr Cain might like to consider cancellation of a current visa.
10 The decision of the Administrative Appeals Tribunal had been given on 18 February 1998, six days earlier. It was a decision on the application of the character test, pursuant to s 501 of the Migration Act. It involved the refusal of an application for a permanent resident visa, consequent upon the application of that test.
11 When Mr Cain gave evidence before the learned trial judge, the appellant, who appeared in person, asked him in cross-examination about his understanding of the currency of a bridging visa pending appeal from the Administrative Appeals Tribunal. It was put to him that, following the refusal of a visa under s 501, the applicant was automatically granted a bridging visa pending departure from Australia or an appeal. His response was that if someone was cancelling a visa under s 501, they may also have cancelled the bridging visa under the same section. According to him, his state of mind was:
"As far as I could ascertain, your visa had ceased and my belief was that there had been an error by another office in not either [sic] recording the things correctly before granting you a visa and that you held no visa."
At the time, Mr Cain had in his possession the very decision of the Administrative Appeals Tribunal, which he could have checked to see if it involved a cancellation of the appellant's bridging visa B. He also had in his possession the Department's file relating to the appellant. He had been instructed to consider cancellation of a visa, obviously on the basis that a visa existed that could be cancelled.
192 In Taylor at [144], Kirby J alluded to the difference between the circumstances in Taylor and those in Goldie. Otherwise, the reasons in Taylor do not refer to the Full Court's approach in Goldie.
193 At [135], the primary judge found:
On the evidence adduced at trial, I am satisfied that Mr Andersson bona fide suspected that Mr Okwume was an unlawful non-citizen. The reasonableness of the suspicion is to be assessed in the context of Mr Andersson having personally made the decision to cancel Mr Okwume's visa in his capacity as a delegate of the Minister and therefore involves a different kind of factual enquiry than that undertaken at least in the trial stages in Ruddock.
194 I accept it was correct for the primary judge to point out the distinguishing feature of Mr Okwume's visa cancellation from Taylor. However, her Honour continued at [131]:
It is to be borne in mind that the High Court 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. (emphasis added)
195 It is this passage which causes me some difficulty. In Taylor, the High Court refers to a "mistake of law" but does not describe the approach to the determination of when a suspicion formed for the purposes of s 189 is reasonable in terms of whether an officer "ought reasonably to have known the requirements of the law". The "law" to which her Honour refers in these paragraphs is the law relating to the making of a cancellation decision without jurisdictional error, including without denial of procedural fairness. It is not simply the express terms of a statute, but what statutory terms (s 119(1)(a) in particular) have been held by courts to require in order for the legal requirements of procedural fairness to be satisfied.
196 Having considered the evidence, and the law concerning cancellation decisions under s 116, where a notice under s 119(1)(a) was required, the primary judge found (at [158]-[159]):
In the statutory context I have described, it was not sufficient that Mr Andersson put to Mr Okwume a bare assertion that a document examiner had "determined" Mr Okwume's passport to be "bogus". He was required to give Mr Okwume sufficient particulars of the information upon which the document examiner's findings were based. To deny a visa holder the opportunity to comment on the particulars of information relied upon by an expert adviser would be to deny the visa holder the meaningful opportunity to persuade the decision maker that the expert opinion cannot be reasonably relied upon in determining whether grounds for cancellation of the visa exist.
Accordingly, s 119 of the Act required that Mr Okwume be given particulars of the facts and matters underlying Mr Kriss' opinion, including information to the effect that the laminate on Mr Okwume's passport differed in comparison with a specimen passport that had (at least apparently) been issued some seven years previously. Whether or not it was reasonable for Mr Andersson to suspect the document to be counterfeit on that basis is a matter in respect of which Mr Okwume was entitled to be meaningfully heard. Mr Andersson did not fulfil the statutory criteria by merely asserting (as he did) that a document examiner had determined the passport to be "bogus". Mr Okwume could make no meaningful submission in respect to that particularised assertion except to broadly assert (as he did) that the passport was genuine. It is difficult to conceive of a situation in which the mind of a decision-maker would ever be swayed by a broad and unspecific denial of the kind given by Mr Okwume in answer to a broad and unspecific allegation. (emphasis added)
197 When the primary judge uses the term "required" in this passage, I understand this to mean required by s 119 of the Migration Act, read with the authorities which have considered that provision. That is: "required" as a matter of administrative law. From [163] onwards, the primary judge then turns to the dictation argument, which I consider below.
198 Then, at [176], the primary judge states:
I take into account the circumstance that the Minister is not a legal practitioner. The Act nonetheless reposes in the Minister powers to cancel a visa that have the statutory consequence that a person meeting the description of an officer will act upon the assumption that the decision is legally effective, so as to deprive a person of their physical liberty. When exercising the cancellation power under s 116 of the Act pursuant to a delegation under s 496 of the Act, Mr Andersson stood in the shoes of the Minister. A person upon whom a statutory power is conferred ought reasonably to know the conditions of the exercise of the power. More specifically, the Minister may reasonably be expected to know at least the conditions affecting the exercise of the powers conferred under s 116 of the Act, including the requirements to comply with the rules of procedural fairness prescribed in ss 119 and 120. The relevant conditions are expressed on the face of the statute. (emphasis added)
199 Again, I understand the reference by the primary judge to "conditions" of the exercise of power to mean the legal conditions, whether express or as developed by case law. Although it is correct that "on its face" s 119(1)(a) provides that an officer must give a person whose visa is to be cancelled under s 116 "notice" of the "grounds and of the information (not being non-disclosable information) because of which the grounds appear to exist", the statute says nothing about the nature and level of information that must be provided. The statute itself does not define what a "ground" is and what "information" is. The nature and content of that obligation has been filled out by authorities which have considered the provisions: see, for example: Zhao v Minister for Immigration & Multicultural Affairs [2000] FCA 1235 at [23]-[25]; Tien v Minister for Immigration & Multicultural Affairs [1998] FCA 1552; 89 FCR 80 at 92; Minister for Immigration and Citizenship v Brar [2012] FCAFC 30; 201 FCR 240 at [57].
200 It is correct on the evidence, as Besanko J sets out, that the s 116 notice completed by Mr Andersson identified the "ground" for the cancellation of Mr Okwume's visa as that he had presented a bogus document at Brisbane Airport, with the effect that he was liable to have his visa cancelled under s 116(1)(d) of the Migration Act. The notice does not identify (in the relevant part of the document) any "information" because of which the ground existed. The only portion of the document which does this is in the actual cancellation decision part of the document - Part B. There, Mr Andersson records the opinion of the document examiner (Mr Kriss) which had been conveyed to Mr Andersson. As Besanko J sets out at [36] of his Honour's reasons, it appears Mr Okwume was informed by Mr Andersson that it was his Nigerian passport that was considered to be bogus, but as the primary judge found, no further details were provided - such as that Mr Kriss had concluded the printing on the laminate on Mr Okwume's passport was counterfeit.
201 It can be accepted that the authorities to which I refer in [199] may suggest more information should have been provided for the procedural fairness purpose of s 119(1)(a) to be achieved. Certainly that is what the primary judge found. However, I would respectfully disagree with the primary judge's characterisation that the conditions on the power, as she found them to exist, are expressed "on the face" of s 119(1)(a). The nature and extent of the information which it is necessary to provide to satisfy the procedural fairness function of s 119(1)(a) is not apparent on the face of the provision: rather, this is what has been developed through the authorities. Further, even if to a lawyer reading the text, a matter might be apparent "on the face" of a legislative provision, in my respectful opinion great care needs to be taken before attributing to a non-legally qualified officer in the position of Mr Andersson an ability to interpret, or understand, a provision as a lawyer might.
202 Although the primary judge recognised her conclusion about Mr Andersson's exercise of power, and the reasoning to that conclusion which she adopted, were not raised on behalf of Mr Okwume, nor put to Mr Andersson or to the Commonwealth, the primary judge decided that did not preclude the Court making this one of the bases of its decision. The reason her Honour gave is at [179]-[180]:
I am mindful that it was not directly put to Mr Andersson in cross-examination that he had failed to observe the requirements of s 119 of the Act in the manner identified in these reasons. That omission can be explained by Counsel for Mr Okwume not having founded a case on a breach of that provision. Counsel for Mr Okwume did not make any submission as to how the requirements of Subdivs C, D and E of Div 3 of Pt 2 of the Act interrelated when invited to do so by the Court. The respondent, on the other hand, accepted that invitation. Counsel for the respondent correctly submitted that the requirements of Subdiv E applied and that s 119 of Subdiv E had been complied with. I have ultimately accepted the first part of that submission but rejected the latter.
I am satisfied that there is no unfairness to the respondent in determining that Mr Andersson contravened the Act in the manner I have identified in these reasons. The onus lay upon the respondent to prove that there was lawful justification for Mr Okwume's detention. Mr Andersson clearly deposed without qualification in his evidence-in-chief that he had no independent recollection of any of the steps taken in cancelling Mr Okwume's visa. Consistent with that evidence, there was no oral evidence Mr Andersson could give to rebut the inferences available to be drawn from the documentary evidence, considered as a whole.
203 It was not disputed on the appeal that her Honour was correct to summarise Mr Andersson's affidavit evidence as being that he had no independent recollection of any of the steps he took to cancel Mr Okwume's visa. However, the Commonwealth submitted:
4. Paragraph 10 of Mr Okwume's Answer asserts that "the facts are beyond controversy" - essentially because Andersson had no recollection of the particular decision, and the Notice of Intention to Consider Cancellation form provided the only evidence of the exchange between Andersson and Mr Okwume. That submission takes too narrow a view of the issue on which the Commonwealth was denied procedural fairness.
4.1 The primary impact on the Commonwealth of Charlesworth J's denial of procedural fairness was in relation to the finding that Andersson did not hold a reasonable suspicion that the decision was validly made because he knew or ought to have known that he had not given a notice of the kind required by s 119 of the Act.
4.2 Charlesworth J found that Andersson subjectively held a suspicion that Mr Okwume was an unlawful non-citizen. Therefore, the critical issue was whether Andersson's suspicion that Mr Okwume was an unlawful non-citizen was a reasonable one, in light of the construction of s 119 that Charlesworth J adopted and the error that her Honour found Andersson to have made.
5. That was an evaluative judgment, in respect of which submissions plainly might have made a difference. Had the Commonwealth been on notice of the issue, it could have submitted that it was not unreasonable for Andersson:
(5.1) to fail to appreciate that, by relying on Kriss' expert opinion, he was "to be taken to have made the same assumptions and findings and adopted the same reasoning [as] Mr Kriss" - that being an apparently novel doctrine finding its first expression in the reasons of Charlesworth J;
(5.2) as a decision-maker, to interpret s 119(1) of the Act as requiring him to provide to Mr Okwume only the information on which he, Andersson, in fact based his finding that a ground for cancellation existed - namely the opinion expressed by a document examiner that the passport was a false passport; and
(5.3) to suspect that the visa cancellation decision would not be affected by his failure to comply with s 119, as that section was later construed by Charlesworth J.
Charlesworth J's reasons make no reference to those matters, and it is possible that her Honour overlooked them in finding that an officer in Andersson's position could not reasonably have formed even a suspicion that Mr Okwume was an unlawful non-citizen.
204 I note that none of the parties to the appeal sought to uphold the primary judge's findings summarised by the Commonwealth in (5.1) above. They conceded it was erroneous, but it does not appear to have been the basis for her Honour's reasoning supporting the orders made.
205 Thus, the main thrust of the Commonwealth's submissions, which I accept, is that if it had had an opportunity to put submissions to the primary judge, it may have been able to persuade her Honour that what she sought to impute to Mr Andersson as a reasonable level of knowledge about the legal obligations imposed by s 119(1)(a) was not reasonable. Alternatively, the Commonwealth may have been able to persuade the primary judge that the test she adopted (that a suspicion will not be reasonable for the purposes of s 189 if the exercise of power which has rendered a person without a valid visa is one the detaining officer ought reasonably have known was made in breach of the conditions on that exercise of power) was not the test set out in existing authorities and should not be adopted. I also accept the Commonwealth would have, at least, given consideration to whether any different or additional evidence might have been put forward. I accept on the appeal that no specific example of the kind of evidence that the Commonwealth would have put forward was proffered. However, it seems to me consideration might have been given to adducing evidence about the training afforded to officers in the position of Mr Andersson. What can be attributed to a "reasonable" officer may well, it seems to me, need to be assessed by reference to how officers in the position of Mr Andersson are trained, and what information they are given about their statutory obligations.
206 For my own part and as I explain below, I do not accept that an officer in the position of Mr Andersson "should have known" about the proper construction and operation of s 119(1)(a), and the level of particularisation which was required to make a cancellation decision lawful through compliance with s 119(1)(a).
207 The denial of procedural fairness need only be established to have deprived the Commonwealth of the possibility of a successful outcome: Stead v State Government Insurance Commission [1986] HCA 54; 161 CLR 141 at 147, reaffirmed by members of the High Court in Minister for Immigration and Border Protection v WZARH [2015] HCA 40; 256 CLR 326 at [43], [53] and [60]. In the present circumstances that threshold is comfortably satisfied.
208 The Commonwealth also relied on the following passage from Tocoan Pty Ltd v Commissioner of Police [2013] WASC 318 at [30], where Le Miere J said:
Where there has been a denial of procedural fairness affecting the entitlement of a party to make submissions on issues of fact, or the weight to be given to matters in the exercise of a discretion, or the making of an evaluative judgment, it is difficult for a court of appeal to conclude that compliance with the requirements of procedural fairness could have made no difference to the outcome.
209 I agree with that passage. Especially where, in my respectful opinion, the primary judge's approach to what is comprehended by a reasonable suspicion for the purposes of s 189 travels beyond the approach set out in Taylor and Goldie.
210 Accordingly, I uphold ground 1 of the Commonwealth's notice of appeal.
211 Ground 4 of the Commonwealth's appeal challenges the primary judge's finding of jurisdictional error in relation to the nature and content of the obligation in s 119(1)(a). I do not consider it is necessary to decide the correctness of the primary judge's analysis of jurisdictional error. First, as I have explained, that finding involved a denial of procedural fairness to the Commonwealth and is liable to be set aside on that basis. Part of the circumstances of the denial were that the point identified by the primary judge was not only one not raised on behalf of Mr Okwume, it was one which had been positively disavowed. The Court should not compound the denial of procedural fairness by proceeding as if these circumstances are of no consequence.
212 Second, and critically, even if that finding was available as the correct legal conclusion on the evidence, the primary judge erred in finding that the existence of a jurisdictional error of that kind affected the reasonableness of the suspicion formed by Mr Andersson for the purposes of s 189 of the Migration Act. Therefore, it is not necessary for the Court to embark on further consideration of the correctness of the primary judge's approach to the nature and content of the obligation in s 119(1)(a). What follows are my reasons for this second conclusion.
213 I consider Mr Andersson's suspicion about Mr Okwume's status as an unlawful non-citizen was a reasonable one in the circumstances, as the current authorities have explained that concept. That is because:
(a) Mr Andersson had relied on Mr Kriss' opinion about the falsity of Mr Okwume's passport. Mr Kriss was an expert document examiner, on whose opinion Mr Andersson had relied on previous occasions, and who explained his opinion about Mr Okwume's passport to Mr Andersson. This was a sufficient basis for Mr Andersson to reasonably suspect the passport fell within the definition of "bogus document".
(b) Mr Andersson estimated he had cancelled more than 100 visas, although the largest proportion were on other grounds than the bogus document grounds. However, Mr Andersson gave evidence about his practices dealing with documents he suspected to be bogus, including why he was content to rely on Mr Kriss' opinion.
(c) The documentary evidence before the primary judge suggested Mr Andersson followed the processes set out in s 119 of the Act, as he understood them. The form he filled in contained an expression of the ground for cancellation, but did not in the appropriate section set out anything about Mr Kriss' opinion, although this was set out in a subsequent section. The evidence before the primary judge suggests Mr Okwume was not informed about Mr Kriss' opinion prior to his visa being cancelled.
(d) Mr Andersson subjectively believed Mr Okwume was an unlawful non-citizen because Mr Andersson had cancelled his visa. In circumstances where Mr Andersson was the cancelling officer, and he was able to rely on the processes he had himself undertaken, this provided at least part of the foundation for the reasonableness of his belief.
(e) There was no cross-examination of Mr Andersson about his practice in relation to s 119(1)(a), in terms of how much information he understood that provision required him to supply to a person whose visa was to be cancelled. Obviously that was because this was not an issue at trial. There was however, cross-examination of Mr Andersson about some of his other practices - that is, those relevant to the way the applicant put his case. In those circumstances, there is no positive evidence to support a finding that Mr Andersson's level of understanding about the requirements in s 119(1)(a) was less than a reasonable officer could or should be expected to understand.
(f) There was no oral evidence given by Mr Andersson or others focussing on the departmental advice or training given to officers about what level of information about cancellation grounds they needed to give to individuals in a position such as Mr Okwume found himself. Nor was there any cross-examination of Mr Andersson about the terms of s 119(1)(a) itself, or the authorities which describe the content of the obligation to provide "information" to support an identified ground of cancellation. There was no evidence from other officers indicating a different practice about the level of information provided to individuals who were being given notice under s 119(1).
(g) The matters to which I have referred in (e) and (f) above mean there is no probative material on which a finding could be made about what it was reasonable (or not reasonable) for an officer in the position of Mr Andersson to know or understand, even if this is the correct approach to take to the terms of s 189 of the Act.
214 Further, as the Commonwealth submitted, the primary judge's shift in language to asking what an officer "ought reasonably to have known" about "conditions for the exercise of the power" finds no support in the authorities on s 189, principally Taylor and Goldie. The plurality identified the correct question in Taylor at [27] as whether the suspicion, if subjectively held, is reasonably based. There is nothing in Taylor suggesting the Court necessarily intended the question of whether a suspicion was reasonably based to include an inquiry about the level of understanding an officer should have concerning the legal requirements of natural justice, as developed in the authorities. The result in Taylor suggests the opposite, although I accept that the facts in that case involved a cancellation by someone other than the detaining officer.
215 While it might be inferred that in passages such as [7] in Goldie, Gray and Lee JJ were referring to what an officer "ought to have known" the Court is referring to a "fact" that an officer might reasonably have been expected to know, had conscientious and proper searches been undertaken. Naturally enough, where it is alleged an officer "ought to have known" certain facts, that allegation will need to be put to the officer, and a probative basis will need to be established for any finding by the Court that it was reasonable to expect an officer to know such facts.
216 To prove that an officer's subjective suspicion (based on her or his own conduct in cancelling a visa) is not reasonably based as a matter of law, in the way suggested by the primary judge, may well be difficult without straying into the area of misfeasance. Alternatively, such an approach may amount to an allegation that an officer exercised a statutory power negligently - that is, without regard for the applicable law which (on the primary judge's approach) a reasonable officer in her or his position would have known. Here, the primary judge had rejected Mr Okwume's causes of action based on misfeasance and negligence.
217 With respect to the primary judge, I consider her Honour's description of the requisite knowledge to satisfy the threshold of a "reasonable" suspicion for the purposes of s 189 is an extension of the current law. That extension should not be made in circumstances where the officer concerned has not had an opportunity to deal with the allegations, and the Commonwealth has not had the opportunity to deal with the contentions at trial. The primary judge's approach required of Mr Andersson that he assess - and impugn - his own decision-making against the legal standards imposed by courts on judicial review. I do not consider an approach such as this is clearly supported by either Goldie or Taylor, and I do not consider it is an extension of the principles set out in those cases which should be accepted by this Court on appeal in the current circumstances, given the denial of procedural fairness to the Commonwealth at trial.
218 Therefore, I respectfully disagree with the approach taken by Besanko J, especially at [137].
219 That is not to gainsay the (hypothetical) proposition that there may be occasions where a legal requirement (or condition on a statutory power) is so plain that there could be no reasonable basis for an officer to suspect a person's visa had been lawfully cancelled, so as to render her or him an unlawful non-citizen, even if the officer herself or himself had exercised the cancellation power. A hypothetical example might be the failure to provide a notice under s 119 at all, in circumstances where it was clear from the evidence that officers are trained to ensure such a notice is given by filling in a form they are expected to be familiar with, have been instructed about what it needs to contain, and have been told what the purpose of giving notice is. As I have noted above, such situations may either approach misfeasance, or are better seen as an allegation of a negligent exercise of a statutory power. They are quite different from the approach to be taken in deciding what facts it is reasonable for an officer to know, although even that inquiry will have a particular forensic context in each case.
220 There is no such obvious legal error in this case. Mr Andersson provided notice in the correct form. The content of the notice, on its face, set out a ground and (at least in a later part of the notice) set out the information about that ground. As a matter of administrative law, the latter may not have been sufficient to afford procedural fairness to Mr Okwume as the authorities in this Court have interpreted s 119(1)(a): I do not decide that question. However I note that procedural fairness in this context has a qualitative aspect, illustrated by Besanko J's reference (at [137] of his Honour's reasons) to a person being given a "meaningful opportunity" to respond to information. While there can be no quarrel with a qualitative approach to procedural fairness in that sense as a matter of administrative law, it is another matter altogether to impose a qualitative obligation on officers in the position of Mr Andersson as a precondition to their suspicion under s 189 being capable of being characterised as "reasonable". I repeat however, that it seems to me in most cases, cross-examination of the officer concerned will be necessary for such a finding to be made, as well as for procedural fairness to be afforded. I also consider that, in order to establish and identify the requisite standard of how much it is reasonable to expect an officer like Mr Andersson to know about the context of procedural fairness (or any other legal requirement that may condition an exercise of power), evidence may be required. Or, at least, the party with the burden of proving the officer had a reasonable suspicion (the Commonwealth), should be given the opportunity to consider whether to call evidence. An election not to do so may also be forensically significant: but the ability to elect must generally be provided.
221 Accordingly, in addition to upholding ground 1 of the Commonwealth's notice of appeal, I would also uphold grounds 3.1, 3.2, 3.4 and 3.5 of that notice. Even if (as I have assumed) the primary judge's finding about the nature and content of the obligation in s 119(1)(a) was available as the correct legal conclusion on the evidence, it was an error for the primary judge to find that a jurisdictional error of this kind affected the reasonableness of Mr Andersson's suspicion for the purpose of s 189 of the Act. I would not go so far as to uphold the contention in ground 3.3 of the Commonwealth's notice of appeal in relation to Mr Andersson (namely that "the relevant officers were entitled to presume the visa cancellation decision to be valid, and therefore that their suspicion that the Respondent was an unlawful non-citizen was reasonable"). It is not necessary to go that far to dispose of the appeal.