92 Mr Hasan did not detain Mr Guo. Accordingly, his state of mind is immaterial unless relevant to the formation of Ms Luu's state of mind. The Commonwealth submitted that "it was reasonable for Ms Luu to rely on the assessment of Mr Hasan", citing in support Kostopoulos at [40] and [53]. These observations in Kostopoulos are a factual finding based on the particular circumstances of that case. Whether Ms Luu did rely on Mr Hasan's BAT and whether it was reasonable for her to do so are issues of fact that need to be determined on the evidence in this case.
93 Ms Luu did not recall having considered Mr Hasan's BAT at the time she detained Mr Guo. She inferred from a document she did complete on 29 February 2012 that she had considered Mr Hasan's BAT before detaining Mr Guo. As the drawing of inferences is a matter for the Court, Ms Luu's belief, based as it is on a document and not a recollection, is immaterial. It is necessary to assess the evidence of what Ms Luu did. The same approach must be taken to a facsimile sent by another officer to the officer in charge of the Burwood Local Court Cells on 10 February 2012. That is, Ms Luu did not say that she considered this document before detaining Mr Guo and any inference she did so must be based on evidence, not assumption.
94 Ms Luu herself sent a facsimile to the MRRC on 12 February 2012 which said:
I, Joanne Luu, am an officer for the purposes of the Migration Act 1958.
Mr GUO Qi Guang … is to be held in immigration detention under the Act as:
He/she is known or is reasonably suspected to be:
X An unlawful non-citizen; or
…
Under Section 5 of the Act, a person is in immigration detention if being held by or on behalf of an officer at a place specified in paragraph (b) of that definition, ("a place of immigration detention")
As an officer for the purposes of the Act, I hereby request you to hold him/her on my behalf in/at State Correctional Facility, a place of immigration detention.
95 It is not apparent from the evidence why Ms Luu completed the facsimile in these terms. Nevertheless, from the face of the facsimile I infer that she did in fact suspect Mr Guo to be an unlawful non-citizen at the time she sent the facsimile.
96 Ms Luu received a telephone call on 29 February 2012 informing her that Mr Guo had been granted bail. She went to the MRRC and conducted an interview with Mr Guo, referred to as a Compliance Client Interview or CCI. Ms Luu filled out a standard form relating to this CCI which noted that Mr Guo claimed to hold a bridging visa and was awaiting the outcome of a spouse visa application. Against an entry "DETERMINATION - Reasonable suspicion established that a person is a UNC" Ms Luu has ticked the "Yes" box. Under "REASONS FOR DETERMINATION" Ms Luu has written:
Client is UNC
Client is not case law affected.
97 Ms Luu also ticked the "Yes" box against the question Case law Assessment completed", the "No" box against the question "Person affected by case law?", and entered Mr Hasan's name next to this information. Ms Luu also ticked the box "I hold/continue to hold a reasonable suspicion that the person named is an unlawful non-citizen".
98 I infer from this that Ms Luu considered the BAT which Mr Hasan prepared. I infer also that, as noted above, after the CCI she continued to suspect that Mr Guo was an unlawful non-citizen. Although she cannot recall doing so it was Ms Luu's practice to telephone the relevant delegate of the Minister to discuss whether or not it was appropriate to detain the person. The delegate at the time was Roger Allen. Ms Luu believes she would have followed her practice in the present case. She also completed a transfer of custody form authorising a transfer of custody of Mr Guo from the MRRC to "an officer from Immigration for the purposes of the Act". Mr Guo was transferred into Ms Luu's custody and she and other officers arranged for Mr Guo to be taken to Villawood. Mr Guo was thus detained by Ms Luu for the time when he was transferred to her custody until at least the time she left him at Villawood.
99 The Commonwealth submitted:
In the circumstances, the relevant information available to Ms Luu provided objective justification for her suspicion that the Applicant was an unlawful non-citizen. The circumstances did not require her to make any further enquiry. In particular, no further enquiry into the accuracy of the case law assessment conducted by Mr Hasan was justified. Mr Hasan's assessment concluding that the Applicant was not Srey affected specifically referred to the fact that the Applicant had commenced a valid application for merits review of the decision in 1996 to refuse his application for a class 815 PRC (Permanent) Entry Permit (the Permanent Visa).
This was consistent with Ms Luu's understanding that a person who made a valid application for merits review within the applicable time limit was not "Srey affected" notwithstanding the fact that the letter notifying the person of a visa refusal decision may have contained a legal defect…. That understanding was based on policy and procedures provided by the Department to Ms Luu. Ms Luu is not a lawyer. She could not be expected to come to her own view on the effect of Srey; nor, given the Department's clear policy position…could she be expected to seek further advice on the issue.
100 For Mr Guo it was submitted that:
(1) nothing in the evidence before the Court suggests that Ms Luu herself considered Mr Guo's visa history;
(2) Ms Luu accepted that most, although not all, notification letters issued between about 1994 and 2000 were defective;
(3) despite this, Ms Luu did not check the first notification letter to Mr Guo to ascertain whether it was defective; and
(4) Ms Luu did not do so because she acted on the basis of the information from the Department, the effect of which was that if a person had applied for merits review within time, the notification letter need not be checked as, in short, "merits review cures all".
101 This submission is a fair summary of the effect of Ms Luu's evidence.
102 Two further submissions were made for Mr Guo in this regard. First, that Ms Luu ought reasonably to have checked the first notification letter for herself to ascertain whether it was defective, citing in support Okwume at [119]. Second, that the Department's information on which Ms Luu relied was "so factually and legally unsound, particularly vis-à-vis the applicant's circumstances, as to be untenable and such reliance upon it is unreasonable".
103 The problem with the first submission is that the information provided by the Department effectively directed officers that they need not check the notification letter if the person had made a valid application for merits review within time. While some of this information referred expressly to the context of Srey, most of it was expressed more generally. In particular, nothing in the Departmental information directed an officer to consider the kind of visa held. Rather, the information directed officers that if a valid merits review application had been made, the notice of refusal of the visa application need not be checked; the person would not be affected by the defective notification. Read fairly and as a whole, officers were being informed (wrongly) by the Department that if a valid merits review application had been made, then it did not matter if the Minister's notice of refusal of any visa application was invalid.
104 Ms Luu could not reasonably be expected, in the circumstances, to reach an independent view about the reliability of the Departmental information. She was not a lawyer. She was a compliance officer who worked in the field. All of her relevant training was by the Department. She had no reason to believe the Departmental information to be wrong. It was not obviously wrong on its face. On its face, it appeared to be a considered and good faith summary of relevant legal circumstances. Contrary to the Commonwealth's case, however, I do not accept that the conclusions reached in this paragraph necessarily mean that Ms Luu's suspicion that Mr Guo was an unlawful non-citizen was reasonable.
105 In particular, I do not accept that the observation in Ruddock v Taylor at [40] that "…what constitutes reasonable 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" means that an officer who detains a person relying on Departmental information necessarily holds a reasonable suspicion irrespective of the content of the information or any other surrounding circumstance. This was not an issue required to be considered in Ruddock v Taylor. To the contrary, I consider that the information itself and all surrounding circumstances are relevant to the question of reasonableness and, in particular, that information reasonably capable of being known to an officer is not to be assessed as if the officer operates in a vacuum. An officer is an officer under the Act. The classes of persons who are officers under the Act (as defined in s 5(1)) are confined to those who could reasonably be expected to have access to information capable of founding a rational suspicion that a person is an unlawful non-citizen. It necessarily follows that the surrounding circumstances relevant to assessing the objective reasonableness of an officer's suspicion include the policies, practices and procedures that have been established to ensure that a detaining officer or officers have access to accurate and current information about a person's status.
106 It is necessary to ask whether the suspicion was "justifiable upon objective examination of relevant material", including that "which is discoverable by efforts of search and inquiry that are reasonable in the circumstances" (Goldie at [4]). Departmental information formed without "due inquiry" may not be capable of founding a reasonable suspicion (Goldie at [6]). Departmental information may also lack any rational justification "according to an objective criterion" (Hyder at 15(7)). If so, a suspicion formed on the basis of such information may itself not meet the standard of a reasonable suspicion even if it was objectively reasonable for the detaining officer to rely on the policy, advice or information. I also do not exclude the possibility that for an officer to rely on Departmental information may itself be unreasonable depending on the circumstances including if the officer knows or ought reasonably to know that the information is incorrect. As I have said, however, that is not the present case. Ms Luu's reliance on the Departmental information was reasonable because that information dealt with a legal issue in terms which, on its face, appeared to be considered and in good faith.
107 This leaves the submission for Mr Guo that the Departmental information was so factually and legally unsound as to be untenable, making the suspicion that Ms Luu formed about Mr Guo being an unlawful non-citizen not a reasonable suspicion. The Commonwealth answered this submission as follows, it being common ground that on 22 November 1996 Mr Guo made a valid application for merits review of the decision to refuse him a permanent visa within the correct 28 day time period that applied to such a review:
(1) in most cases, the commencement of valid merits review proceedings will affect the question whether Srey applies;
(2) neither Srey, nor any other decided case applying Srey of which the Commonwealth is aware, involved a situation where the unsuccessful visa applicant had in fact made a valid application for merits review within the time allowed;
(3) in Srey Gray J said at [45] "[a] bridging visa is to be kept alive, to prevent the person from becoming an unlawful non-citizen, until it can be seen whether an application for review is made and, if such an application is made, until it has been determined". Arguably, "this suggests that a bridging visa will cease upon determination of the merits review proceedings (or in this case, because of the different statutory context, the Temporary Visa ceased on notification where a valid application for review was made)";
(4) while the reasoning in Srey at [49] that the "question whether there has been compliance with s 66(2)(d)(ii) cannot depend on what the recipient or intended recipient of the purported notification does or does not do, whether before or after the purported notification is sent or received. The question of compliance is apparent on the face of the document itself. If there has been non-compliance, in my view, there is not a notification for the purposes of the legislative scheme that depends upon satisfaction of the requirements of s 66" arguably suggests that "whether or not an unsuccessful visa applicant applies for merits review cannot affect the effectiveness of notification given under s 66", this does not fit comfortably with, and may be contrary to, subsequent authority. In particular, in the Commonwealth's words:
It is clear that the application of the principles in Project Blue Sky (i.e. the determination of the validity or effectiveness of an administrative action) [Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355] can take account of the specific consequences of the departure from the statutory requirement in a particular case, including whether the departure led to any injustice [citing, in support, Minister for Immigration and Citizenship v SZIZO [2009] HCA 37; (2009) 238 CLR 627 at [26] and [35]-[36]; Maritime Union of Australia v Minister for Infrastructure and Regional Development [2015] FCAFC 187 at [66(6)] and [76]; SZOFE v Minister for Immigration and Citizenship [2010] FCAFC 79; (2010) 185 FCR 129 at [30] and [65]-[67]] …; and
(5) accordingly, the "effectiveness of notification under s 66 (as well as any subsequent exercise of jurisdiction by a merits review tribunal) can depend on the nature and consequence of any departures from the formal requirements of s 66." Thus, it is "certainly arguable that the decision in Srey is distinguishable where an Applicant in fact made a valid application for merits review within time and, as a result, suffered no adverse consequences".
108 In respect of proposition (1) above, in Srey the applicant held a bridging visa subject to cl. 010.511(b)(iii) of Schedule 2 to the Migration Regulations 1994 (Cth) (the 1994 Regulations). As such, the bridging visa would have ceased to exist 28 days after notification of the outcome of the review by the Tribunal, had such an application been made (the period in cl. 010.511(b)(iii) of Schedule 2 is now 35 days). It follows that, in the case of a bridging visa subject to cl. 010.511(b) of Schedule 2 to the 1994 Regulations, the question whether a valid (that is, within time) application for review of the Minister's decision to refuse a permanent visa was made (resulting in the Tribunal deciding to remit the application to the Minister for reconsideration) was relevant because the bridging visa would no longer be in force after expiry of the specified period from the date of notification of the Tribunal's decision, irrespective of any defect in the notice of the Minister's decision.
109 Mr Guo, however, did not hold a bridging visa subject to the operation of cl. 010.511 of the 1994 Regulations. He held a different kind of bridging visa, a Class 437 temporary entry permit which, as explained above, remained in force until Mr Guo had been notified of the Minister's decision "in accordance with regulation 2.8" (item 437.52(a) of Schedule 3 to the 1993 Regulations). By reason of Srey, a notice in accordance with regulation 2.8 was a notice in accordance with s 66 of the Act. It was known to the Department generally, including to Ms Luu, that most notices of visa refusal decisions issued between 1 September 1994 and 30 June 2000 were invalid because they did not correctly identify the period within which an application for review could be made. The notice to Mr Guo, of 25 October 1996, was thus known by Ms Luu to be likely to be invalid. The only reason she concluded that this did not matter, it is apparent, is her reliance on the Departmental information. As I have noted, although part of this information referred to the specific context of Srey, most of the information (particularly the BAT which was the initial assessment tool officers were required to use) was expressed in general terms, as if all bridging visas were subject to cl. 010.511 of the 1994 Regulations.
110 Section 37 of the Act provides:
There are classes of temporary visas, to be known as bridging visas, to be granted under Subdivision AF.
111 The 1994 Regulations identify various kinds of bridging visas in Div 2.5 of Pt 2. In addition to this, any person responsible for preparing information to be used by officers to detain people as known or reasonably suspected unlawful non-citizens must or ought reasonably to have known that the legislation had been amended from time to time with the consequence that some kinds of visas would be subject to statutory provisions other than those in the 1994 Regulation.
112 In these circumstances, proposition (1) may or may not be accurate. It may be accepted that in the case of a bridging visa subject to cl. 010.511(b)(iii) of Schedule 2 to the 1994 Regulations, a defective Ministerial notice is immaterial if the person made a valid application for merits review and the Tribunal decided not to remit the application to the Minister. In the case of a temporary entry permit, however, there is no provision equivalent to cl. 010.511(b)(iii) of Schedule 2 to the 1994 Regulations; the operative provision (item 437.52(a) of Schedule 3 to the 1993 Regulations) bringing the temporary visa to an end is engaged only by a valid Ministerial notification letter. The number of cases in each category is unknown. Given that the Commonwealth bears the onus of proof, I cannot be satisfied that in most cases, the commencement of valid merits review proceedings will affect the question whether Srey applies. In cases of a bridging visa to which cl. 010.511(b)(iii) of Schedule 2 to the 1994 Regulations applies, the existence of a valid merits review application and a Tribunal decision other than to remit the matter to the Minister will render immaterial a defective Ministerial notification, but whether that is "most" or "some" cases I do not know.
113 In respect of proposition (2), it may be accepted that the Commonwealth was unable to identify any case in which an unsuccessful visa applicant had in fact made a valid application for merits review within the time allowed. It does not seem to me that this carries material weight. Srey, in terms, was confined to bridging visas subject to particular aspects of the statutory scheme which expressly provided for the bridging visa to cease within a specified time period after notification of the Tribunal's decision. There is a gulf between that circumstance and the Departmental information to the effect that an officer generally need not consider the Minister's notice if a valid application for review has been made.
114 In respect of proposition (3), Srey provides no support for the content of the Departmental information. The observation at [45] relates to bridging visas which are subject to a specific statutory scheme. Those responsible for preparing Departmental information to be relied upon by an officer exercising powers of detention must be taken to have known that bridging visas may have been issued at different times and thus under different statutory provisions, and if they did not know this, such lack of knowledge was unreasonable in the circumstances.
115 Further, there is no evidence from which it could be inferred that those preparing the Departmental information placed weight on [45] of Srey. Indeed, there is no evidence at all indicating who prepared the Departmental information, when it was prepared, or how it was prepared. I do not know the qualifications or experience of the people who prepared the information. I do not know if they obtained legal advice. I do not know if the information was subject to any form of review or updating. These matters are relevant given that it is the Commonwealth which bears the onus of proving that the suspicion of Ms Luu was objectively reasonable.
116 In respect of proposition (4), the same points can be made. There is no evidence that the Departmental information was prepared having regard to the reasoning in Project Blue Sky, SZIZO, Maritime Union of Australia, or SZOFE. There is no evidence that anyone in the Department turned their mind to the question whether Srey was arguably inconsistent with these decisions. In any event, I see no inconsistency. Gray J applied Project Blue Sky at [42]. Project Blue Sky confirms the primacy of legislative intention to the question of the consequence of breach of a statutory requirement. SZOFE at [30] and [65]-[67], SZIZO at [26] and [35]-[36] and Maritime Union of Australia at 66 and [76] say nothing different. They each involved an exercise in statutory construction to ascertain if the legislature intended a breach of a statutory requirement to invalidate the administrative action. The consequences of breach, in the present context, were relevant only to the extent that they are capable of assisting in discerning legislative intention. They were not relevant to any consideration of potential injustice by reason of the breach, at large and uninformed by the purposes of the statutory provision. Consistently with this, Project Blue Sky could be relevant only to the question whether a failure to stipulate the correct time period for the making of a review application invalidated the Ministerial notice. In Srey, Gray J held that a notice stating the incorrect time period for review was no notice at all. Nothing in the reasoning in Srey suggested that the making of a merits review application within time would have any general curative effect on defective Ministerial notifications.
117 There is no evidence about how the Department got from the outcome in Srey (a notice stating the incorrect time period is no notice at all) to the content of the information it provided to officers (if a merits review application has been made within time the person is not Srey affected and, more importantly, that the office need not check the notice to see if it is valid). The problem is in the failure of the information to disclose that the outcomes identified are a result of specific statutory provisions which apply to some bridging visas (those subject to cl. 010.511(b)(iii) of Schedule 2 to the 1994 Regulations) but not to a temporary entry permit, such as that held by Mr Guo, which were subject to a different statutory regime by the express terms of which it was a valid Ministerial notification alone which brought the temporary visa to an end.
118 Even if it can be said that it is arguable that the fact of the making of a valid application for merits review meant Srey was distinguishable, there is no suggestion that the Department applied any such process of reasoning in preparing the information. I also do not accept that this proposition is arguable. It involves a misunderstanding of Project Blue Sky and confuses the consequence of the failure to stipulate the correct time for a merits review application with the status of the visa Mr Guo held. In working out whether the legislature intended a notice which failed to identify the correct time period for a merits review application to be a notice within the meaning of s 66 of the Act, whether the person made a merits review application within time can never be material. This is because the issue is one of ascertaining whether the legislative purpose is to invalidate an act done in breach of the particular statutory requirement. Legislative purpose cannot be identified by what might have occurred in an individual case. It is to be discerned from the text and context of the statute, which can include considerations such as the practical consequences of breach of the requirement. As such, the decision in Srey, that a notice which fails to state the correct time period for review is no notice at all, could never have been distinguished by a consideration such as a particular applicant in fact having made a merits review application within time. Further, the lack of any adverse consequence to Mr Guo (because he availed himself of the merits review within time) is immaterial given that the statutory provisions regulating the duration of his visa made clear that his visa continued until expiry of the specified period after he had received a Ministerial notice refusing his permanent visa application. The provisions applying to Mr Guo's visa made no mention of merits review or a decision by the Tribunal or notification of a decision by the Tribunal.
119 This aspect of the case should be resolved on the basis of the Commonwealth's onus of proof. It has not adduced evidence from which any inference can be drawn about:
(1) who prepared the Departmental information on which Ms Luu relied;
(2) the qualifications or experience of the persons who prepared the information;
(3) how the information was prepared;
(4) whether the information was subject to internal or external review of any kind, be it legal review or otherwise; or
(5) whether the information was updated and, if so, how, by whom, and on what basis.
120 This is in circumstances where the information on which Ms Luu relied was wrong and:
(1) there is no evidence about how the person(s) who prepared the information got from the reasoning in Srey to the proposition that an officer need not check any Ministerial notification to see if it was defective if an application for review had been made within time (a proposition broader than cl. 010.511(b)(iii) of Schedule 2 to the 1994 Regulations, it might be noted);
(2) given the nature of the information it must or reasonably should have been known to that person or those persons that the information would be used by officers for the purpose of determining whether they knew or suspected that a person was an unlawful non-citizen and, as a result, detaining that person;
(3) as a result, it would be unreasonable for the person or persons preparing the information not to take reasonable care to ensure that the information was accurate;
(4) there is insufficient evidence from which it might properly be inferred that such reasonable care was taken, the only evidence being the terms of the information itself;
(5) however, such person(s) knew or ought reasonably to have known that:
(a) there are various classes of bridging visas subject to different statutory provisions; and
(b) it was necessary to consider the particular provisions to determine when such a visa might cease;
(c) Srey involved a bridging visa subject to cl. 010.511(b) of Schedule 2 to the 1994 Regulations;
(d) Srey itself did not involve a person who had made a merits review application and Srey does not suggest that an officer need not check the Ministerial notification to see if it was defective;
(e) a bridging visa subject to cl. 010.511(b) of Schedule 2 to the 1994 Regulations will have ceased despite a defective Ministerial notification if a merits review application had been made within time and the result was not to remit the matter to the Minister for reconsideration; and
(f) this was a result of the application of statutory provisions applying to such a bridging visa and not to other kinds of visas which were subject to their own statutory provisions; and
(6) further, the information is not only wrong insofar as it purported to apply to bridging visas generally, but there is no case or statutory provision providing a rational foundation for the view that the making of a merits review application meant that every form of such a visa ceased as a result of a valid application for merits review.
121 Given this, I do not accept that the Departmental information was capable of founding a reasonable suspicion on the part of Ms Luu (or any other officer) that Mr Guo was an unlawful non-citizen. The information purported to apply to Mr Guo's circumstances when, on any rational view, it could not apply to his circumstances. Accordingly, the Department had not ensured that due inquiry was made about the accuracy of the information when it ought reasonably to have done so given that the Department intended the information to be used for the purpose of officers deciding whether or not to exercise powers of detention. It is not that the Department must ensure that it never makes an error of law or of fact in detaining a person (although this must be its aim given that the deprivation of liberty is involved). It is that the evidence in this case does not satisfy me that there was any rational foundation for the information given to officers and relied upon by Ms Luu to detain Mr Guo to the extent that information purported to apply to persons other than those who held a bridging visa subject to cl. 010.511(b) of Schedule 2 to the 1994 Regulations as in Srey. Any consideration of the statutory provisions which meant that a person was not "Srey affected" because the person had made a valid merits review application would have disclosed that this resulted from particular provisions applying only to bridging visas under the 1994 Regulation. An obvious and essential inquiry, which had to be made before information purporting to apply generally was disseminated, was whether other bridging visas were subject to equivalent provisions. If they were not, the only reasonable course was to confine the information to bridging visas subject to cl. 010.511(b) of Schedule 2 to the 1994 Regulations or equivalent provisions. It is not apparent that any such inquiry was made.
122 Given these conclusions, and the evidence that Mr Guo's second detention was based on the same information, it follows that the Commonwealth has not discharged its onus of proof of lawful justification for Mr Guo's detention at any time. For the entirety of the periods claimed, Mr Guo was falsely imprisoned on the basis of suspicions that he was an unlawful non-citizen which do not meet the statutory requirement of a reasonable suspicion as provided for in s 189(1) of the Act.
123 It is only if I am incorrect in these conclusions that it is necessary to consider Mr Guo's continuing detention during the first period and his second detention, both initial and continuing.
124 Further, if I am incorrect in these conclusions then I should confirm that I am satisfied that Ms Luu did suspect that Mr Guo was an unlawful non-citizen. She believed her suspicion was reasonable because she reached it relying on the Departmental information. It was reasonable for her to rely on that information and to apply it to Mr Guo without herself making any further inquiries.