Consideration
15 The primary issue to be determined by this Court is whether the applicant's detention during the relevant period was both authorised and required by ss 189(1) and 196 of the Act.
16 For the reasons which follow, I am of the view that the relevant detaining officers had a reasonable suspicion over the relevant period that the applicant had the status of being an unlawful non-citizen within the meaning of s 189(1). By reason of this finding, the applicant's detention during the relevant period was both authorised and required by ss 189 and 196 of the Act.
17 I also am of the view that by reason of this finding there is no need for me to determine the other potential arguments raised by the applicant in this matter. This Court should confine itself to determining only those matters dispositive of the justiciable controversy - an exercise in "judicial economy" which promotes judicial efficiency: see Boensch v Pascoe [2019] HCA 49; 268 CLR 593 at [7] per Kiefel CJ, Gageler and Keane JJ (although arising in the context of appellate review).
18 The Commonwealth bears the onus of proving that the detention was at all times lawful: AOU21 v Minister for Home Affairs [2021] FCAFC 60 at [185]. By this, the Commonwealth must prove that the detention was authorised by law. In this case, the Commonwealth submits it was so authorised by its powers under s 189 of the Act. Accordingly, this case turns on an interpretation of s 189.
19 By its operation, s 189 provides that a person must be detained if an officer knows or reasonably suspects that the person is "an unlawful non-citizen". The evident purpose of s 189 and the detention it authorises, is "to separate a person from the community until their status and the lawfulness of their presence is investigated and determined", as recently elucidated by Kiefel CJ, Keane and Gleeson JJ in Thoms v Commonwealth of Australia [2022] HCA 20 at [25].
20 In this case, the applicant argues that his detention was unlawful by reason of the purported decision made by Minister Coleman on 24 July or 24 September 2019 to grant him two visas for a period of six months and seven days.
21 In Thoms, the plurality, comprising Kiefel CJ, Keane and Gleeson JJ, considered the decision of Ruddock v Taylor [2005] HCA 48; 222 CLR 612, and in particular a like argument raised by Mr Taylor, to this case. Mr Taylor had argued that because the decision to cancel his visa pursuant to s 501 was unlawful it followed that his detention was unlawful. That argument was rejected, and Kiefel CJ, Keane and Gleeson JJ (Gageler, Gordon and Edelman and Steward JJ agreeing) in Thoms, at [29], extracted the joint judgment in Ruddock v Taylor which explained that the lawfulness of Mr Taylor's detention was determined by reference to s 189(1) in this way:
That argument was rejected. In the joint judgment it was explained that the lawfulness of Mr Taylor's detention was to be determined by reference to s 189(1). The operation of s 189(1) was explained as follows:
Section 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. ... The reference to an officer's state of mind is explicable only if the section is understood as not confined in operation to those who are, in fact, unlawful non-citizens.
(Footnotes omitted, emphasis added)
22 Their Honours thereafter explain, at [30], that s 189(1) applies in cases where, despite it being subsequently established that a person was not an "unlawful non-citizen" (the state of affairs the applicant in this case wants to assert), so long as the officer holds the "requisite state of mind", the person is required to be detained.
23 At [31], their Honours state:
So understood, it does not matter that the applicant here is not an alien. So long as the officers in question had objectively reasonable grounds to suspect that he was a non-citizen who did not hold an effective visa, that was sufficient for his detention to be justified. As a matter of construction, s 189(1) authorises and requires the detention of persons who are not aliens if there are objectively reasonable grounds to suspect that they are non-citizens who do not hold a visa which is in effect.
24 Accordingly, the question for determination by this Court is whether the Commonwealth has established that the officers in question had objectively reasonable grounds to suspect that the applicant was a non-citizen who did not hold an effective visa. Whether there were reasonable grounds is judged against what was known or reasonably capable of being known at the relevant time: Ruddock v Taylor at [40].
25 Justice Jagot, in Guo v Commonwealth [2017] FCA 1355; 258 FCR 31, distilled the relevant principles to be taken into account when determining whether an officer's suspicion that a person is an unlawful non-citizen was reasonable, at [35].
26 Furthermore, the determination of the lawfulness of the detention is not confined by a consideration of whether the relevant officer had the requisite reasonable suspicion at the point that the person was taken into detention but also whether the relevant officer(s) held that suspicion subsequently when the person was kept in detention: Guo at [79]. Accordingly, Jagot J found at [83] - [84]:
83. 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.
84. 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), 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.
27 It follows that these principles are to be applied when assessing the evidence of the relevant detaining officers.