The arrest of the appellant
3 Both the learned trial judge and Stone J have taken the view that the sixth respondent, Mr Cain, acted within power under the Migration Act 1958 (Cth) ("the Migration Act") in detaining the appellant on the afternoon of 24 February 1998, because Mr Cain reasonably suspected that the appellant was an unlawful non-citizen at that time. The relevant provisions of the Migration Act are s 189(1) and s 196. The former provided at the relevant time:
"If an officer knows or reasonably suspects that a person in the migration zone is an unlawful non-citizen, the officer must detain the person."
Section 196(1) provides:
"An unlawful non-citizen detained under s 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."
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 Article 9 of the International Covenant on Civil and Political Rights. 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.
8 The learned trial judge accepted that, at the time of the arrest of the appellant, Mr Cain had a state of mind that amounted to a suspicion that the appellant was an unlawful non-citizen. No reason was advanced on appeal as to why this finding of fact should be overturned. The question therefore is whether, at that time, the suspicion Mr Cain held was a reasonable one. The learned trial judge, and Stone J, have taken the view that the computer record that Mr Cain viewed, and that showed no record of a current visa, was sufficient to ground a reasonable suspicion. This was the only fact that could have grounded such a suspicion. It is necessary to look at it in the light of the other facts known to Mr Cain at the time.
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. 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.
12 On 24 February, Mr Gregg telephoned Mr Cain and told him that he had been informed by the head office of Fluor Daniel in Melbourne that Fluor Daniel intended to dismiss the appellant from its employment. The appellant was employed at the Perth office at 1 Mill Street, Perth.
13 Mr Gregg told Mr Cain that the Finance Manger of Fluor Daniel in Melbourne, Mr Kinsella, was keen to understand what the Department intended to do with the appellant. Mr Cain was asked to call Mr Kinsella. Neither in the record he made of his conversation with Mr Gregg, nor in his evidence, did Mr Cain say that he discussed with Mr Gregg the standing of the appellant's visa.
14 As the learned trial judge found, on the basis of Mr Cain's own evidence, Mr Cain embarked on the process of cancelling the appellant's visa on 24 February 1998. Among the documents tendered at the trial is a decision record created by Mr Cain. At the outset, the decision record was typed on the assumption that Mr Cain was setting out to cancel a visa. It contains two passages quoted from the reasons for decision of the Administrative Appeals Tribunal that Mr Gregg had sent to Mr Cain. This makes it clear that Mr Cain had actually read the decision, and was in a position to know whether the Administrative Appeals Tribunal had cancelled any bridging visa. After recounting a telephone conversation Mr Cain had with Mr Kinsella, and with Mr Hohnen of Fluor Daniel's Perth office, the decision record breaks off and resumes with the words:
"As can be seen from above, I was in the process of cancelling the Bridging Visa held by Mr Goldie. However, upon searching the system a number of times I could not locate any current valid visa. To my satisfaction Mr Goldie did not hold a valid visa and was an UNC.
He was detained at his workplace as an UNC and transferred to the IDC."
15 Mr Cain's handwritten file note with respect to that conversation with Mr Kinsella indicates that the note was made at 2.45 pm on 24 February. It indicates that Mr Cain informed Mr Kinsella of the Department's "normal policy", but "we had reason to believe [the appellant] may attempt to flee - will cancel visa and take into detention". Later in the note of the conversation Mr Cain recorded that the Department would visit the appellant and "assess whether his visa will be cancelled." This note, together with the decision record itself, suggests that at 2.45 pm on 24 February, Mr Cain was still acting on the assumption that the appellant had a visa. It also suggests that Mr Cain would interview the appellant before taking any action. Mr Cain recorded that he would await a "return call" from Mr Kinsella. Mr Cain's record of the "return call" from Mr Kinsella states that Mr Kinsella told Mr Cain that he had been instructed by the General Manager of Fluor Daniel that the appellant was to be dismissed as soon as possible. Mr Kinsella informed Mr Cain that the General Manager wanted the Department to be present when the appellant was dismissed and "to take action". Mr Kinsella said that, due to a "violent history", the appellant would be escorted from Fluor Daniel's offices to the ground floor by Chubb Security. Mr Cain was given a telephone number on which to contact the Perth manager for Fluor Daniel, Mr Hohnen, and instructions on how to get to the Perth office. In a subsequent conversation with Mr Hohnen of Fluor Daniel, Mr Cain learned that the appellant was about to be dismissed from his employment. Due to his violent history, the appellant would be escorted to the ground floor of the company's premises at 1 Mill Street, Perth, by Chubb Security. As the learned trial judge found, Mr Cain and another officer of the Department arrived at 1 Mill Street between 3.30 and 3.45 pm on that afternoon. They joined two officers from Australian Correctional Management (ACM), operator of the Immigration Detention Centre at Perth Airport, Belmont, whom Mr Cain had arranged to be present to take the appellant into detention.
16 Thus, within a period between forty-five minutes and an hour, Mr Cain did a number of things. He had a second conversation with Mr Kinsella and then had a conversation with Mr Hohnen. He typed the eight-line paragraph of his decision record that recounts one of his two conversations with Mr Kinsella and part of the conversation with Mr Hohnen. (The paragraph ends in mid-sentence about the appellant's history of violence.) He searched the Department's computer system to determine what visa the appellant held. His decision record says he searched "a number of times", but the material before the Court shows only computer searches of movement records were made on 24 February. He arranged for two ACM officers to be present at Fluor Daniel's office to take the appellant into detention. Mr Cain and another officer then left the Department's office in Northbridge and travelled to 1 Mill Street in the city centre. The timetable does not suggest that Mr Cain's consideration of all the facts before him was very thorough. It also suggests that, before any computer search was made, arrangements had been made with Fluor Daniel to take the appellant from the security officers escorting the appellant from Fluor Daniel's premises.
17 There was an absence of sufficient search or inquiry to make the formation of the suspicion justifiable on objective examination. Mr Cain was an experienced officer of the Department, who should have been aware of the provisions of the Migration Regulations that extended the operation of the visa granted to the appellant in November 1995, pending determination of the appellant's application for a permanent residence visa. That awareness would have provided a clear warning to Mr Cain that he would have to make more than a cursory enquiry before he could form a reasonable suspicion that the appellant did not hold a current visa.
18 It might be thought that, if the search made by Mr Cain caused him to doubt that the appellant held a visa, he should at least have asked the appellant to explain what his status was under the Migration Act. Having been instructed to consider cancelling the appellant's visa, Mr Cain, pursuant to s 192 of the Migration Act, could have detained the appellant for a limited time to question the appellant, subject to the pre-condition set out in subs 192(2) being satisfied. As noted above, Mr Cain told Mr Kinsella that he intended to cancel the appellant's visa and take the appellant into detention, but whether he could have done so under s 501 of the Migration Act without according the appellant natural justice would have required Mr Cain's close attention.
19 Having regard to all the circumstances, we are of the view that Mr Cain's suspicion that the appellant was an unlawful non-citizen was not reasonable. It is unnecessary to speculate but perhaps, if the only facts known to Mr Cain at the time had been those contained in the computer record, it may have been that his suspicion would have been reasonable. However, Mr Cain had other facts before him. He chose to prefer to base his state of mind on the computer record, the information in which was incomplete and older than the other materials available to him. He chose to disregard the other facts, and rely on the information obtained from a partial search of the record. In choosing to form a suspicion on the basis of a computer record two years old, without making inquiries or checking more recent records, Mr Cain did not act reasonably. He assumed that someone else had made a mistake. This assumption necessitated the formation of a belief that the Administrative Appeals Tribunal, Mr Gregg, and possibly other officers of the department were all mistaken. In the circumstances, it was not a reasonable assumption.
20 Mr Cain's action in arresting the appellant was precipitate and not justified by s 189(1) of the Migration Act. It was not based on knowledge or reasonable suspicion on the part of Mr Cain. It was not suggested that any other ground justified the arrest and detention of the appellant. That arrest and detention was therefore unlawful and gives rise to a right to damages on the part of the appellant. In our view, the appeal must therefore be allowed in part and the matter remitted to the learned trial judge for the assessment of damages. In view of the fact that the appellant should have succeeded at first instance in respect of part of his claim, the appeal should also be allowed so far as it concerns the order that the appellant pay the respondent's costs of the proceeding at first instance. Rather than attempting to exercise the discretion with respect to costs ourselves, we are of the view that the question of the costs of the proceeding below should also be remitted to the learned trial judge, who will be in a better position to determine the whole issue of costs in that proceeding after undertaking the assessment of damages. Although the appellant succeeded on one issue, it was the substantive issue of the appeal and the appellant, although not represented by counsel, should have the costs of the appeal to allow him to recover out of pocket expenses incurred in preparing the appeal.
The validity of the bridging visa E
21 The appellant contended that the bridging visa E granted to him on 27 February 1998 (the means by which he secured his release from detention on that day) was invalid. His purpose was to enable him to avoid the accusation that he had brought himself in breach of a condition attached to that visa that he not work. His previous bridging visa B had contained no such condition, and he had been working until immediately prior to his detention on 24 February 1998. His purpose was also to enable him to contend that the restriction on his right to work was relevant to the measure of damages that would flow from his unlawful detention. His need to contend that the bridging visa E was invalid arose because of the privative clause in s 485 of the Migration Act, which had the effect of depriving the Court of jurisdiction to review any decision other than one made judicially reviewable by Div 2 of Pt 8 of the Migration Act. The decision to grant the bridging visa E was not so reviewable for a number of reasons, not the least of which is that it was a decision to grant, rather than a decision to refuse to grant, a visa.
22 The basis of the appellant's contention was that his bridging visa E was a nullity because (as was conceded) he already held a bridging visa B and a person who held a bridging visa B was not eligible to apply for, or to be granted, a bridging visa E. The question whether an application is a nullity has been productive of judgments of previous Full Courts. See Minister for Immigration & Multicultural Affairs v A [1999] FCA 1679 (1999) 91 FCR 435 and Yilmaz v Minister for Immigration & Multicultural Affairs [2000] FCA 906 (2000) 100 FCR 495. Conflicting views have been expressed in both cases. Gray J endeavoured to express his own view of the outcome in Sevim v Minister for Immigration & Multicultural Affairs [2001] FCA 1597 at [48] - [56]. At [56], he expressed the view that, even if the Minister had considered an application which was not a valid application, contrary to s 47 of the Migration Act, the resulting grant of a visa was validated by s 69. We adhere to that view. It follows that, even if the application had not been a valid application, the resulting grant of a visa would not be a nullity. In any event, nothing in s 46 of the Migration Act, which provides for what is a valid application, suggests that ineligibility to be granted a visa for which an application is made is a ground for regarding the application as other than a valid application. The appellant's argument that the decision to grant him a bridging visa E must fail. For these reasons, as well as for those given by Stone J, the appeal so far as it is based on ground (c) must be dismissed.
23 It does not necessarily follow that the grant of a valid bridging visa E broke the chain of causation between the unlawful detention of the appellant and his suffering of loss by reason of being unable to work lawfully. This question was not argued. We express no view on it. It may be agitated before the learned trial judge when the assessment of damages is determined, but only if the evidence establishes that the appellant did not work because of the condition in the bridging visa E.
I certify that the preceding twenty-three (23) numbered paragraphs are a true copy of the Reasons for Judgment herein of their Honours Justices Gray and Lee.