The Primary Judge's Reasons
116 The starting point is the acts and events in September and October 2003.
117 The respondents called two witnesses at the first trial. They were Ms Rebecca Chow and, as we have already mentioned, Ms Lorilee Lockhart. The primary judge said that there were no material factual disputes that required him to make credibility findings in respect of any of the witnesses.
118 In September 2003, Ms Rebecca Chow was employed as an officer in the Section 501 Cancellation Team in the Compliance Section of the Perth office of the Department. Her duties included preparing submissions for the Minister to consider in respect of the cancellation of visas under s 501 of the Act.
119 On 16 September 2003, Carr J handed down his decision in Fernando v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 975. A legal officer advised that, as a result of the decision, the appellant could not be removed from Australia. On the same day, Ms Chow received an email from her supervisor, Mr Colin Drysdale. This email forwarded two emails from a Mr Vincent Giuca. Mr Giuca was an officer in the Canberra office of the Department and he advised of Carr J's decision, and asked that a new visa cancellation process be commenced as soon as possible. He advised that the new cancellation process should not use the non-disclosable information which had previously been used. In one of the emails, he said:
I understand Fernando is coming out of prison on the 5th of October. In a notice to cancell [sic] we need to give him 14 days to respond. If one of your officers could hand deliver a notice of intention to cancel tomorrow, and gave him 14 days to respond, an assessment and decision could be finalised before he is released.
120 On 17 September 2003, Ms Chow drafted a Notice of Intention to Consider Cancelling a Visa under Section 501(2) of the Act. The draft contained a statement that a response was required by 1 October 2003 and that, if no response was received, a decision would be made using information already held by the Department.
121 The appellant was given a notice in those terms on either 17 or 18 September 2003 when an officer visited him in Acacia prison. The primary judge found that the notice was served on 18 September 2003. It was not suggested that anything turned on the difference.
122 About a week before 1 October 2003, the appellant contacted the Acting Minister's office in Canberra by telephone. He spoke to a Mr Charles Wann, who the primary judge described as an "official". The appellant asked for an extension of time within which to provide his submissions. Mr Wann said that he did not have authority to grant an extension of time, but that he would pass his request on to the Department.
123 On 25 September 2003, Ms Chow sent an email to Mr Giuca in the following terms:
I refer to your direction of 16 September 2003 that a decision be finalised before Mr Fernando's release on 5 October 2003 (Sunday).
The Notice was hand delivered to Mr Fernando on 17 September 2003. He has until 1 October 2003 to respond.
I will complete the submission, and hopefully - have it cleared by this office at the end of 2 October (Thursday). I will send you an electronic copy of the submission, including the annexures which will give the Minister Friday (3 October) to make his decision.
I understand the Minister is overseas. Will this affect if a decision can be made before 5 October? Or is there some other Minister or person that will be making the decision on his behalf?
Please liaise with Kevin O'Connor (Acting Manager) regarding the receipt of the Minister's decision in the event that the decision is not finalised before the close of this office on 3 October.
124 Mr Kevin Pullen, who was an officer employed in the Canberra office of the Department, responded to Ms Chow's email saying that Mr Giuca was away and that the Minister would be overseas on 3 October 2003.
125 On 26 September 2003, Mr Pullen sent an email to Ms Chow and Mr O'Connor in the following terms:
I have discussed the Fernando matter with Avinesh Chan in the Minister's office and he supports your proposal that this matter be put for Mr Hardgrave in his capacity as Acting Minister. Avinesh will alert Minister Hardgraves [sic] office that the submission is likely to be ready for his signature next Friday. You will therefore need to get the submission and all associated attachments to us by Friday morning. We will then arrange to personally deliver to Minister Hardgrave's office.
126 On 29 September 2003, Mr Chan sent an email to Ms Chow in the following terms:
I have talked to Minister Hardgrave's office re the Cancellation sub that will be coming their way.
Is it possible for the submission to be ready for [indistinguishable]. I note that Mr Fernando would be due for release on the weekend - if he is to be taken into immigration detention straight away, the sub would need to be signed and returned to Perth before the weekend?
Also note that Minister Hardgrave is in Brisbane, so his office would need to send it there for signature - and that his acting period will end on the weekend. Further complication being that there will be a new Minister for Immigration on Tuesday. Best if the sub was signed before Friday to ensure that everything goes smoothly.
127 The appellant had not received a response to his application for an extension of time by 29 September 2003, and so he handed part of his submissions to the Acacia prison authorities in Perth to be posted to the Minister's office in Canberra. The submissions were voluminous. They were posted that day.
128 As at 30 September 2003, Ms Chow was the person within the Department who was going to prepare the submission. She needed some urgent advice about a difficulty which had arisen and so she sent an email to Ms Vicki Tumini in the following terms:
I refer to our discussion this morning.
• On 31 July 1998 Mr Fernando was sentenced to a total of 8 years imprisonment for 3 counts of sexual penetration without consent.
• The Minister cancelled Mr Fernando's visa under s 501 on 29 November 2001.
• On 10 January 2002, after receiving the Notice of Cancellation and a copy of the decision record, Mr Fernando sent to the department comments regarding the cancellation decision.
• On 16 September 2003 the Federal Court quashed the Minister's decision on the basis that non-disclosable information was put to the Minister to which Mr Fernando was not given the opportunity to comment on the substance of the non-disclosable information.
• Due [to] the serious nature of his crimes, the department has decided to re-submit Mr Fernando's case to the Minister for a fresh decision, without the non-disclosable information.
Please note that this is a matter of urgency. Mr Fernando is being released on 5 October 2003 (this Sunday). We hand delivered a new NOICC on 17 September 2003 and he has until 1 October (Wednesday) to respond. I need to have the submission completed by Thursday morning.
As part of his letter of 10 January 2002, Mr Fernando submitted a copy of the decision record with his comments embedded throughout. Problem: the decision record refers to the non-disclosable information which we want to leave out of the new submission. You were of the opinion that his comments though not in direct response to the new Notice would need to be put to the Minister. You also suggested that the references to the non-disclosable information be blacked out. As an alternative, my manager suggested that a note be attached to the submission stating that the non-disclosable information referred to the in original decision record has been excluded for Minister's consideration for the current decision.
I am faxing to you Mr Fernando's response of 10 January 2002 for your advice as to how I can still include the comments embedded in the decision record but at the same time, exclude the references to the non-disclosable information.
I appreciate your assistance in this matter. Thanks.
129 On 30 September 2003, the appellant sent a facsimile to the Perth office of the Department advising that the submissions in response to the notice of intention to cancel his visa had been posted to the Minister's office in Canberra for privacy reasons. The appellant also referred to the fact that he had not received a response to his request for an extension of time. Later on that day, an officer from the Perth office of the Department, Mr Richard Keane, contacted the appellant regarding the facsimile.
130 Ms Chow sent two emails on the afternoon of 30 September 2003. The first was sent to Ms Tumini and Ms Basic, with copies to Mr O'Connor and Mr Drysdale at 1.38pm:
I require some further advice regarding Mr Fernando.
We have just received a response from Mr Fernando regarding the Notice of 17 September 2003 (see attachment). The Notice directed him to submit comments by 1 October to the Perth office. However, he states that he has sent his submission to [sic] directly to Minister Hardgrave. Clearly, we will not be receiving those comments in the Perth office tomorrow. Are we bound to consider those comments?
Also note that his submission is apparently, 256 pages long. In light of the strict time frame we have set for an assessment and finalised decision - and the volume of Mr Fernando's response, Kevin O'Connor is concerned as to whether the Minister will be seen to have properly considered all of his comments.
Vicki please let me know if you did not receive the fax of Mr Fernando's response of 10 January 2003.
131 Ms Chow gave evidence that she had some concerns about whether they were bound to consider the comments which the appellant said he had sent.
132 The second email was sent to Ms Tumini and Mr Gerrard, with copies to Mr O'Connor, Ms Basic, and Mr Chand at 4.01pm:
In a telephone conversation Mr Fernando told our office that the submission sent to Minister Hardgrave was a "work in progress", that it is substantially the same as those documents filed in the Federal Court but that he had made some amendments. He told an officer that due to privacy concerns his submission had been referred to the Minister personally and would not release "Volume 4" to Perth DIMIA officers for collection by 1 October 2003.
I understand that Minister Hardgrave's office has not received a copy of Mr Fernando's original submission - only a fax that indicated that he had sent the submission contained in 2 envelopes today.
133 Sometime late in the afternoon of 30 September 2003, it was decided that the submission would be prepared by Mr Niall Stoddart in the Canberra office rather than Ms Chow. Ms Tatam advised Ms Chow by email also sent to Mr Charles Wann:
Charles Wann from Mr Hargraves [sic] office has advised that: Amanda Lynch is travelling up Thurs afternoon, so the submission will either have to get to this office by then, or go up by bag on Friday. Amanda will need to be briefed beforehand about the submission, as well as what the Minsiter [sic] needs to do in terms of signing then faxing the decision record to Perth on the Saturday. I'm assuming in all this that Minister Hardgrave is acting Minister Ruddock up to and including Saturday.
Charles: I have received yr fax. Would you (or Avinesh) be able to confirm the acting Minister's arrangements pls?
(Original emphasis).
134 Ms Chow and Mr Allen Williams visited the appellant in Acacia prison on 2 October 2003. Ms Chow's note of some of the matters discussed is as follows:
We explained that the Immigration office in Canberra had not received his submissions and that we were there to give him the opportunity to provide a verbal response as to why he believed his visa should not be cancelled until s 501.
...
Mr Fernando explained that he did not want the Perth office to look at the submission for reasons at [sic] confidentiality. He said that he had sent his submission consisting of 4 volumes and contained in 2 envelopes to Minister Ruddock at the Benjamin offices. He emphasised that he only wants the Minister and his associates in Canberra to have access to those documents. He stated that the 'Volume 4' filed to the Federal Court is 'only a fraction' of the submission he sent to the Minister in that it is much 'bigger and complex'. He also claimed that he had problems submitting the submission earlier because of a power failure at the prison.
...
Again we explained that the office in Canberra had not received his submission and that it was in his interest that he provide a copy of the submission to us to pass it directly to Canberra to be included in his submission to the Minister. He explained that he could in no way release it to us. He explained that the submission formed part of his submission to the Royal Commission into Western Australian Police Corruption. 'Operational Blizzard Alpha' relates to police corruption and 'Operational Blizzard Beta' refers to the disappearances of women from Claremont.
135 The appellant filed an application in the Western Australia district registry of this Court on 2 October 2003 seeking to review the decision and conduct of the Visa Cancellation Unit of the Perth branch of the Department.
136 The minute and issues paper prepared by officers of the Department for the Acting Minister was described by the primary judge in the following way (at [41]-[47]).
The minute, which had been prepared by the departmental officers, was signed by Ms Yole Daniels, the Assistant Secretary, Compliance and Analysis Branch of the department and forwarded to the Acting Minister on 3 October 2003. Accompanying the minute was an issues paper which had also been prepared by the departmental officers. The issues paper included a section headed: "Statement of Reasons", which anticipated the Acting Minister making a decision to cancel Mr Fernando's visa.
Paragraph 9 of the minute stated that the Federal Court had on 16 September 2003, "quashed" the Minister's previous decision to cancel Mr Fernando's visa on the basis that Mr Fernando had been denied procedural fairness. The minute went on to say that certain non-diclosable [sic] information had been provided to Minister Ruddock before he decided to cancel Mr Fernando's visa and Mr Fernando was not provided with that information and Mr Fernando had not been given an opportunity to comment upon the substance of it.
Paragraph 10 of the minute stated:
The department requests that you consider whether to cancel Mr Fernando's visa under s 501(2). However, the non-disclosable information, previously put to Mr Ruddock, will not be put to you.
The minute then went on to state:
ISSUES
11. Attached are issues for your consideration regarding the possible cancellation of Mr Fernando's visa under section 501(2) of the Act.
12. Your decision must be based only on the information provided to you. You must disregard the fact that certain non-disclosable information was considered in relation to the previous cancellation decision that was quashed.
The accompanying issues paper was headed:
Issues for consideration of possible cancellation of visa under s 501(2) of the Migration Act 1958.
The purpose of the issues paper is described as follows:
1. To seek your decisions on:
• Whether Mr FERNANDO passes the character test in s 501(6) of the Migration Act; and
• If not, whether to cancel his visa pursuant to s 501(2) of the Migration Act.
2. Should you choose to make a cancellation decision the draft statement of reasons at part E should set out correctly your reasons for doing so. If it fails to do this a revised statement of reasons that includes your required amendments will be prepared.
The issues paper stated that Mr Fernando was currently held in custody at Acacia prison and that Mr Fernando was due to be released from prison on 5 October 2003. The issues paper also stated that Mr Fernando had been served with a notice inviting him to submit in writing any comments which he believed to be relevant to the consideration of the question of whether his visa should be cancelled. The issues paper went on to say that Mr Fernando was given until 1 October 2003 to respond to the notice and that Mr Fernando had sent his submissions directly to the Minister's office in Canberra, and that the submissions had not yet been received. A copy of the notice of 17 September 2003 was annexed to the issues paper. The issues paper also stated that Mr Fernando had advised two departmental officers who had visited him in Acacia prison on 2 October 2003, that the submissions were more extensive than the information already before the department, and that he had refused to give further copies of the submissions to the officers.
137 On 3 October 2003, the Acting Minister made the decision to cancel the appellant's visa without having regard to the appellant's written submissions which were sent to the Minister's Canberra office by the appellant on 29 September 2003, and which arrived in the Minister's Canberra office on 7 October 2003.
138 The primary judge found that both officers of the Department and the Acting Minister had acted in conscious and contumelious disregard of the rights of the appellant to procedural fairness, and his right not to have his liberty curtailed, save by lawful process.
139 The critical findings made by the primary judge in his second judgment were as follows:
(1) the conduct of the officers of the Department who prepared the minute and the issues paper to the Acting Minister, and the Acting Minister, demonstrated a cynical, conscious, and contumelious disregard for the rights of the appellant;
(2) each of the officers of the Department, including Ms Yole Daniels, who signed the minute, knew on 3 October 2003 that the appellant had sent his submissions to Canberra and that he had a right, as an incident of the right to procedural fairness, to have his submissions considered prior to the cancellation of his visa;
(3) each of the officers of the Department knew that the Acting Minister would not be in a position to consider those submissions if the Acting Minister was to make a visa cancellation decision on 3 October 2003;
(4) the officers of the Department knew that the appellant could only be detained following a lawful cancellation of his visa, and that a breach of procedural fairness would render the visa cancellation unlawful;
(5) the officers of the Department nevertheless forwarded the minute and issues paper to the Acting Minister on 3 October 2003 rather than waiting for the appellant's submissions to arrive, so as to facilitate the making of the visa cancellation decision by the Acting Minister on 3 October 2003, if he was so minded; and
(6) the officers of the Department deliberately engaged in this conduct in furtherance of "the departmental stratagem" to have the appellant detained on 5 October 2003.
140 The primary judge said that these findings were to be inferred from the email correspondence he identified in his first judgment, and which we have summarised above, and from the terms of the minute and issues paper themselves, particularly paragraph 9 of the minute. In addition, the primary judge noted that none of the officers of the Department or the Acting Minister gave evidence and he inferred that their evidence would not have assisted the case of the first and second respondents respectively.
141 The primary judge concluded that the officers of the Department, in preparing and forwarding the minute and issues paper to the Acting Minister on 3 October 2003, acted with conscious and contumelious disregard for the appellant's right to procedural fairness, and his right not to have his liberty curtailed, save by lawful process, and merited the description of outrageous, arbitrary, and a high-handed exercise of executive power.
142 As to the Acting Minister, the primary judge referred to his findings in the first judgment. The primary judge did not deal with exemplary damages in his first judgment so that reference would seem to be a reference to his findings in connection with his conclusion that the Acting Minister was guilty of misfeasance in public office.
143 In his first judgment, the primary judge said that there had been a breach of the rules of procedural fairness, not only because 14 days was insufficient time (which he referred to as the Sales reason), but also because the Acting Minister had gone ahead to make a decision without waiting for submissions, which he knew were on the way to him.
144 In his first judgment, the primary judge found that the Acting Minister knew on 3 October 2003 that the appellant had not been accorded procedural fairness, that it was beyond his power to cancel the appellant's visa, and that, by making the cancellation decision in those circumstances, he would be acting unlawfully.
145 In his second judgment, the primary judge relied on further matters in assessing the amount of exemplary damages, and they were that a senior officer of the Department was involved in the conduct, and the Department and the Acting Minister went ahead despite concerns from junior officers as to whether nothing should be done until the appellant's submissions were received (see, for example, Ms Chow's email of 30 September 2003 referred to above at [130]), and the importance of upholding the rule of law.
146 The primary judge said in his second judgment that the award of exemplary damages was made against the Commonwealth only because it had accepted vicarious responsibility for the actions of the Acting Minister.
147 On the remitter, and in his third judgment, the primary judge said that, although the previous Full Court set aside the orders he had made in relation to exemplary damages, it "left in place" the findings he made in relation to the question of exemplary damages. He saw no reason to alter his previous award of $25,000.
148 The previous Full Court did not address the challenges to the primary judge's conclusions with respect to exemplary damages. It did not consider it appropriate to do so having regard to the fact that damages were to be remitted to the primary judge for further hearing on a very different premise, namely, that the appellant had been falsely imprisoned between 5 October 2003 and 18 January 2007. The primary judge's findings were left in place, but not because the Full Court heard and rejected challenges to them. It remains open to this Court to consider the Commonwealth's challenges to the primary judge's findings in relation to exemplary damages.