Kostopoulos v Commonwealth of Australia

The Relevant Legislation 11Section 189 of the Act provides :- If an officer knows or reasonably suspects that a person in the migration zone (other than an excised offshore place) is an unlawful non citizen, the officer must detain that person. 12Section 196 of the Act relevantly provides :- (1) An unlawful non citizen detained under section 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) Subject to paragraphs (1) (a), (b) and (c), if the person is detained as a result of the cancellation of his or her visa under section 501, the detention is to continue unless a court finally determines that the detention is unlawful, or that the person detained is not an unlawful non citizen. (5) To avoid doubt, subsection (4) or (4A) applies; (a) whether or not there is a real likelihood of the person detained being removed from Australia under section 198 or 199, or deported under section 200, in the reasonably foreseeable future; and (b) whether or not a visa decision relating to the person detained is, or may be, unlawful. 13Following the purported cancellation of his visa, the plaintiff nominally came within the definition of an unlawful non citizen, that is, a person who was not an Australian citizen and did not hold a visa. It is not in dispute that the plaintiff failed the character test established by s 501 of the Act, pursuant to which the Minister purported to cancel the plaintiff's visa. 14The defendant meets the plaintiff's claim of unlawful detention by reliance upon s 189 (1), in that the relevant officer's knowledge or reasonable suspicion that the plaintiff was an unlawful non citizen constitutes lawful justification for the detention.

The Defence of Lawful Justification 15The ambit of s 189 was the subject of discussion in Ruddock v Taylor [2005] HCA 48 ; 222 CLR 612. The critical issue for the purposes of establishing the defence is whether the arresting officer reasonably suspects that the plaintiff is an unlawful non citizen. Relevantly, in the course of the majority judgment, the following appears at [27] - [28] :- 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 section 189 imposes on officers. Had it been intended that those who were to be subject to detention by an officer should be confined to those who are in fact unlawful non citizens, section 189 would have been much simpler. The section would have read, "an officer shall detain an unlawful non citizen." 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. Further, the condition upon which the obligation to detain is premised ... is not to be read as excluding from its reach the case where an officer is subjectively convinced that a person is an unlawful non-citizen but later examination reveals that opinion to have been legally flawed. The phrase "knows or reasonably suspects" is expressed disjunctively. Its primary reference is to the officer's subjective state of mind. .... [Where] an officer's subjective opinion has passed from suspicion to certainty of belief, ....the critical question [is] whether the certainty of belief professed by the officer was reasonably based. That is, it follows from the considerations just mentioned that s 189 may apply in cases where the person detained proves, on later examination, not to have been an unlawful non-citizen. So long always as the officer had the requisite state of mind, knowledge or reasonable suspicion that the person was an unlawful non-citizen, the detention of the person concerned is required by s 189. And if the Minister brought about a state of affairs where an officer knew or reasonably suspected that a person was an unlawful non-citizen by steps which were beyond the lawful exercise of power by the Minister, it does not automatically follow that the resulting detention is unlawful. Rather, separate consideration must be given to the application of s 189 - separate, that is, from consideration of the lawfulness of the Minister's exercise of power. 16It is the knowledge or suspicion of the officer responsible for effecting the detention of an unlawful non citizen that grounds the defence : Fernando v Commonwealth [2010] FCA 753. The onus on the defendant is not discharged by demonstrating that persons other than that officer had the requisite state of mind. 17In Goldie v Commonwealth of Australia and Others [2002] FCA 433, Gray and Lee JJ considered the content of the phrase "reasonably suspects". Their Honours said at [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 that particular time. It may be that the existence of the particular fact would ground a reasonable suspicion in the mind of the officer if it were the only facts 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 a form a suspicion on the basis of a single fact capable of supporting such a suspicion. ......................... [The] provisions [of the Migration Act] 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. 18These remarks were made in the context of the formation of a reasonable suspicion by a departmental officer who viewed a computer record on 24 February 1998, which showed that the last visa issued to the appellant was on 24 November 1995 and had ceased to be in effect on 27 February 1996. The departmental officer undertook 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." (at [9]) The departmental officer made no search of the appellant's file to ascertain whether visas had been given extended effect by the operation of the regulations. 19The majority also noted that the departmental officer was in possession of the department's file relating to the appellant and that he had been instructed to consider cancellation of a visa, "obviously on the basis that a visa existed that could be cancelled." (at [11]) The majority went on to refer to the absence of any inquiry by the departmental officer of other potential sources of information. On the basis of the evidence before the trial judge, the majority was of the view that :- The timetable does not suggest that [the officer'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 [the appellant's employer] to take the appellant from the security officers escorting the appellant from [his employer's] premises. There was an absence of sufficient search or inquiry to make the formation of the suspicion justifiable on objective examination. (at [16] - [17]) 20In particular, the following passage of the majority's judgment is relevant to the circumstances of the instant case :- [19] Having regard to all the circumstances, we are of the view that [the officer'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 [the officer] at the time had been those contained in the computer record, it may have been that his suspicion would have been reasonable. However, [the officer] 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, [the officer] did not act reasonably. He assumed that someone else had made a mistake. ...... In the circumstances, it was not a reasonable assumption.

The Circumstances Surrounding the Plaintiff's Detention. 21As the passages extracted from Goldie above demonstrate, the whole of the circumstances surrounding the detention of the plaintiff are relevant to the determination of whether a reasonable suspicion was held by the relevant officer at the relevant time. 22Before turning to those circumstances, it is convenient to deal with one aspect of the plaintiff's argument, namely that the evidence demonstrates that the decision to detain the plaintiff was taken within the Department on 28 September 2007 and that departmental officers did not form a judgment about whether there was a reasonable suspicion that the plaintiff was an unlawful non citizen. 23The evidence in support of this submission is said to be a letter from Ms Rebecca Dominguez to the plaintiff dated 28 September 2007 (Exhibit E). Ms Dominguez was an officer from the National Character Cancellation Centre (NCCC) of the Department in Melbourne. There was no reference within the letter of any consideration by departmental officers about whether or not the plaintiff was an unlawful non citizen. Rather, the letter simply advises the plaintiff that the Minister cancelled the plaintiff's visa on 28 September 2007, goes on to say that a notice setting out the reasons for the visa cancellation would be provided to the plaintiff shortly, and that "as a result of the cancellation of your visa, it will be necessary to take you into immigration detention when you are released from criminal custody." 24The notice setting out the reasons for the visa cancellation was provided to the plaintiff through his then solicitor by letter dated 17 October 2007 (Exhibit F). That letter refers to a Notice of Intention to Consider Cancellation received by the plaintiff on or about 2 August 2007, and to the plaintiff's response to that notice on 8 August 2007. It states that the Minister considered the plaintiff's representations but that he decided to cancel the plaintiff's visa on the grounds of failure of the character test. 25This limb of the plaintiff's argument ignores the central role of the departmental officer who ultimately effects the detention under s 189 of the Act, consistent with what was said in Fernandez. The cancellation of a visa has the capacity to affect a person's status under the Act, one consequence of which may be that the person becomes a candidate for detention. It is the execution of the decision to detain that must be attended by the relevant knowledge or reasonable suspicion. It is not to the point whether Ms Dominguez or any other departmental officer who was not responsible for taking the plaintiff into the Department's custody knew or reasonably suspected that the plaintiff was an unlawful non citizen. Ms Dominguez' role was limited to informing the plaintiff of the outcome of the consideration by the Minister of the plaintiff's representations and the consequences of the cancellation of his visa. 26Alternatively, it is said that the letter demonstrates that the departmental officer(s) tasked with detaining the plaintiff were armed with no more than the documents explaining the Minister's decision to cancel the visa. The validity of this submission depends upon a more thorough examination of Ms Lavulo's evidence, to which I now turn. 27Ms Lavulo had been an employee of the Department since 1993. In 2001 she joined the Compliance Team, which was responsible for ensuring that persons holding visas were complying with their visa conditions and checking persons' immigration status, including removals from Australia of unlawful non citizens. She undertook various training courses which included courses on the operation of the powers of detention in the Act and what constitutes a reasonable suspicion under s 189 of the Act. Her primary role consisted of the case management of departmental clients, whether in detention or in the community, up to and including the grant of a visa or the removal of those persons from Australia. 28In late 2006, Ms Lavulo commenced working with the New South Wales Prisons Removals Team at the Villawood Immigration Detention Centre. The team liaised with the New South Wales Department of Corrective Services to ensure that persons being released from the prison system who were unlawful non citizens would come to the attention of the team prior to their actual release from custody. The team also liaised with the NCCC, that is, Ms Dominguez and her staff in Melbourne. 29In late 2007, the bulk of the cancellation work was managed by Ms Lavulo's supervisor, Ms Kupeli. Ms Lavulo assisted her on a number of matters, including the plaintiff's case. The usual procedure within the team consisted of notification of the cancellation of a visa by the NCCC, followed by the provision of a copy of the cancellation decision and associated documents. The NCCC also updated the Department's electronic system, known as the Integrated Client Service Environment (ICSE) in relation to the cancellation of a visa. 30When informed by the NCCC that a visa had been cancelled, the team would liaise with the New South Wales Corrective Services Department to ascertain the location of and anticipated release date of the individual whose visa had been cancelled. The team would then obtain the cancellation file and review it, including the cancellation decision, check the ICSE to ascertain whether any other visa had been applied for or granted and review the hard copy file pertaining to the individual. The team also confirmed that the individual in custody had been properly notified of the cancellation decision. The team developed a pre-detention s 501 cancellation checklist. 31Whilst these procedures were known to Ms Lavulo as at September 2007, she had no direct experience of taking a person into detention following the cancellation of a visa under s 501 prior to the plaintiff's case. 32Ms Kupeli was the case manager charged with management of the plaintiff's case following cancellation of his visa. Ms Kupeli asked Ms Lavulo to effect the plaintiff's detention at the MRRC at Silverwater on 1 October 2007. Ms Lavulo read the actual visa cancellation decision of the Minister of 27 September 2007. She confirmed that he had been notified of the cancellation decision by faxing to him a letter enclosing the cancellation decision of 28 September 2007 signed by Ms Dominguez (Exhibit E). 33Ms Lavulo reviewed the plaintiff's cancellation file including the submissions that went to the Minister. She assisted Ms Kupeli in the preparation of a Detention Note, which was to be completed after the detention had taken place. In particular, Ms Lavulo helped with the pre-detention background portions of the Note, including the plaintiff's immigration history and the alias that he had used since arriving in Australia. In addition, Ms Kupeli considered whether the plaintiff was affected by the decisions of the Federal Court in Chan Ta Srey v Minister for Immigration and Multicultural Affairs (2003) 134 FCR 308 and Uddin v Minister for Immigration and Multicultural Affairs [2005] FMCA 841. They also considered his extensive criminal history and whether he would qualify for the grant of a Bridging Visa E. (Srey and Uddin have no present relevance to the plaintiff's case.) 34Before attending the MRRC, Ms Lavulo again read the cancellation decision and checked the ICSE system to confirm that the plaintiff's visa had been cancelled and that he had not applied for any visa since the cancellation. Those inquiries of the system were carried out on Saturday 29 September 2007 and Monday 1 October 2007. The former demonstrated that the plaintiff's visa was cancelled on 27 September 2007 and that the plaintiff was notified of the cancellation by fax on 28 September 2007. 35Ms Lavulo stated that, based on her reading of the cancellation decision, her review of the ICSE system and a review of the visa cancellation submissions, she formed a reasonable suspicion that the plaintiff was in the migration zone and was an unlawful non citizen as a result of the cancellation of his visa. I accept that Ms Lavulo was in possession of these items of information. It follows that she was armed with more than the documents explaining the Minister's decision. 36Ms Lavulo left the Villawood Immigration Detention Centre at about 9:45 am on Monday 1 October 2007, drove to the MRRC at Silverwater, interviewed the plaintiff within the reception area, and produced her departmental identification. Ms Lavulo informed the plaintiff that he was to be placed in immigration detention, pursuant to s 189 of the Act as an unlawful non citizen, and that he could seek a review of the cancellation decision. 37In cross examination, Ms Lavulo conceded that she had no clear recollection of when it was that she was asked by Ms Kupeli to effect the plaintiff's detention, although she accepted that Ms Kupeli was not notified of the cancellation of the plaintiff's visa until 4:30pm on Friday 28 September 2007 (Exhibit J). Ms Lavulo's best recollection was that she was asked to carry out the detention on Friday morning, but she later agreed with the plaintiff's senior counsel that that was "untruthful". 38Despite the submission that the entirety of Ms Lavulo's evidence was therefore suspect, I am of the view that Ms Lavulo was acknowledging no more than that her evidence in that regard was objectively false. The plaintiff went further and submitted that the defendant could not establish what system checks were carried out because Ms Lavulo's evidence was wholly unreliable. Her unreliability was said to arise from the absence of any clear recollection of what she actually did in the plaintiff's case, as opposed to what she "would have done". 39Ms Lavulo was inclined to resort to that phrase in the course of cross examination on the timing of the checks that she carried out. I accept that she had no clear memory of precisely what time on Friday, Saturday or Monday she carried out the ICSE inquiries, but I do not accept that she was unreliable as to the fact that those inquiries were made before she went to the MRRC. 40Ms Lavulo was not aware of the decision in Moore at the time she carried out the various inquiries in respect of the plaintiff's status. She acknowledged that it was part of her duties as the detaining officer to carry out a case law check but she did not do so in the plaintiff's case, relying instead upon Ms Kupeli. Ms Lavulo also conceded that the case law assessment was carried out by Ms Kupeli. 41Ms Lavulo reiterated in cross examination that she came to the conclusion that the plaintiff was an unlawful non citizen based upon her system checks and the Minister's decision to cancel the plaintiff's visa. It was repeatedly put to Ms Lavulo that she held the relevant suspicion based purely on the decision to cancel the plaintiff's visa, a proposition that she refused to embrace. 42I reject the submission that the evidence given by Ms Lavulo leads to the conclusion that the actual decision relating to the detention of the plaintiff was taken by Ms Kupeli and not by her. Ms Kupeli delegated the decision to detain to Ms Lavulo, and thereafter Ms Lavulo exercised her own judgment in the matter, albeit she was assisted in the completion of the pre-detention check list by Ms Kupeli. The fact that other officers within the Department may also have decided that the plaintiff ought be detained does not displace the decision taken by Ms Lavulo.

Reasonable Suspicion. 43A significant part of the attack upon Ms Lavulo's alleged reasonable suspicion centred on Ms Lavulo's failure to carry out case law checks. The plaintiff's argument placed considerable reliance upon the existence of the obiter comments in Moore approximately one month before the cancellation of the plaintiff's visa and the steps taken by the Department to bring those to the attention of its staff. It was submitted that Ms Lavulo's failure to carry out sufficient search or inquiry rendered the formation of the suspicion objectively unjustifiable. 44This submission drew heavily upon the rationale in Goldie set out above. It assumes that the whole of the judgment in Moore was available on inquiry by officers responsible for detention under s 189, and that the significance of the comments within that judgment would be appreciated by those reading the decision. It may be accepted that a reported decision of the Full Federal Court would be readily available on inquiry and that an officer reading the decision may realise the significance of the comments made about the cancellation of visas that were granted, as opposed to held. However, it is not so apparent that an awareness of those comments would, without more, render a suspicion regarding a person's unlawful non citizen status unreasonable. 45Some brief reference to the Moore judgment and to the Department's response to it is necessary to place the argument in its proper context. 46In Moore, the appellant's absorbed person visa was cancelled on the basis of the character test. The appellant argued that he did not hold an absorbed person visa because he had not "ceased to be an immigrant" as required by the Act before a given date. The Full Court held that the appellant was absorbed into the Australian community well before that date and that the appellant's absorption was irreversible. The Court went on to hold that the power conferred on the Minister under s 501(2) of the Act to cancel a visa applied only to visas that had been granted to a person. An absorbed person visa was one that was taken to have been granted and accordingly it was a visa which could be cancelled by the Minister. This ruling was sufficient to dispose of ground one of the appeal. 47The Court next observed that pursuant to the Regulations under the Act, a person may be taken to be the holder of a transitional (permanent) visa without there having been a grant or deemed grant of such a visa. Because s 501F(3) of the Act allows for the cancellation of other visas held by a person in circumstances where a granted visa has been cancelled, it followed that the cancellation of an absorbed person visa which had been granted to the appellant would have the effect of cancelling a transitional (permanent) visa held by the appellant. Relevantly for present purposes, the Court went on to say that this process of cancellation could not operate in reverse. The appellant's transitional (permanent) visa could not be the subject of a valid cancellation by the Minister under s 501(2) of the Act. 48On 21 August 2007, the same day that the decision in Moore was handed down, a departmental e-mail was circulated in which the decision was referred to and described as "a department win". The e-mail noted that written reasons would be provided to "relevant persons". The reference to a "department win" was unsurprising, given that the challenge to the visa cancellation in that case was unsuccessful. 49On 12 October 2007, the Director of the Enforcement and Citizenship Litigation Section within the Department requested the then Acting Director, Legal Opinions Section, to seek advice from Mr Burmester QC in relation to the impact of the comments made in the Moore decision set out at [47] above. The advice was sought from Mr Burmester QC the same day. The advice was provided to the Department on 15 October 2007. 50In response to the question whether or not the view taken by the Court was arguably correct, the advice received was that the position was arguable, although not considered correct, and that the comments were obiter but that a magistrate or single judge may find the remarks persuasive. 51Thus, at the time that Ms Lavulo was required to form a reasonable suspicion for the purposes of detaining the plaintiff (1 October 2007), there was no clear authority to the effect that a permanent (transitional) visa of the class held by the plaintiff could not be cancelled pursuant to s 501(2). From the point of view of those responsible for circulating legal opinions within the Department, the comments in Moore were attended with sufficient doubt to require senior counsel's advice. 52The proper test in any event is not whether officers more senior than Ms Lavulo ultimately considered it necessary to seek senior counsel's advice on the remarks in Moore. The question whether a suspicion was reasonably held by Ms Lavulo must be answered by reference to all of the circumstances known to her or reasonably discoverable by her as at 1 October 2007. 53Ms Lavulo was not legally trained although she had undertaken Departmental training courses which included a case law component. Because of her relative inexperience in undertaking a detention following a s 501(2) cancellation of a visa, Ms Lavulo quite reasonably relied upon her supervisor's case law check which, according to Ms Lavulo's understanding, did not disclose a basis for doubting the cancellation of the plaintiff's visa. 54Returning to the Court's reasoning in Goldie, there are a number of factors that are critical to that decision. First, whether a suspicion is reasonably held must be judged in the light of the facts available to the officer at that particular time. Second, the awareness of conflicting facts that are discarded or ignored has a tendency to undermine the reasonableness of the suspicion otherwise held. Third, reliance upon stale or out of date information, or a partial search of the record without making more recent inquiries, may constitute unreasonable conduct. 55The facts available to Ms Lavulo on the morning of 1 October 2007, even if it be assumed that she was made aware of the decision in Moore, did not include the fact that the Minister did not have the power to cancel the plaintiff's visa. There may have been an arguable, even persuasive, view to that effect, but it did not receive confirmation until the decision in Sales on 17 July 2008. The plaintiff's argument followed to its logical conclusion would require Ms Lavulo to ignore the Minister's cancellation decision and act on the basis that an arguable case would become a settled one. 56Ms Lavulo was not therefore aware, nor could she be, of any conflicting facts to those upon which she based her reasonable suspicion. She conducted up-to-date searches of the ICSE system and she reviewed the plaintiff's file. She was provided with a copy of the cancellation decision and confirmed that the plaintiff had not applied for any other visa. The Minister's decision appeared regular on its face. There is no suggestion that Ms Lavulo acted in bad faith. 57Accordingly, the defendant has established on the balance of probabilities that the plaintiff's detention was lawfully justified. The plaintiff's claim in unlawful detention fails. I note that the Third Amended Statement of Claim also alleged negligence on the part of the defendant, but that claim was not pressed on the hearing of the matter. 58I enter judgment for the defendant. The plaintiff is to pay the defendant's costs. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 06 February 2013