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.