In a breakthrough judgment handed down by Justice Besanko of the Federal Court on Wednesday 20 May 2020, our client has been found to have been detained unlawfully for a total of 615 days and awarded exemplary damages for a period where the Department was found to have intentionally, or at least recklessly, acted in disregard to our client’s rights.

MSM Legal’s Mitchell Simmons has been acting for Mr Burgess throughout his high-profile case history in the Federal and High Court. This is the most recent judgment in a complex series of decisions that have helped expose a number of issues within the Department’s cancellation and detention framework.

Mr Burgess’ visa was first cancelled by the Minister for Immigration personally in June 2016. In September 2016, we were successful in having this cancellation decision quashed by the Federal Court on the basis that the Minister had taken into account a faulty police clearance. However, just 20 minutes after the Court handed down its decision, the Minister had already made a new decision to cancel Mr Burgess’s visa. This new decision was again challenged, and in February 2018 the Federal Court once more quashed the Minister’s cancellation decision based on the finding that because the Minister made his decision so quickly after the Court decision in September 2016 that he could not possibly have intellectually engaged in the considerations necessary for that decision.

This week’s decision does not concern whether Mr Burgess should get his visa back. Rather, it focuses on the conduct of the Department in keeping Mr Burgess detained following the decision of the Federal Court, and the interpretation of the framework that governs the duties and obligations of the Department when continuing to detain individuals.

The decision of the Federal Court is significant in two respects.

Firstly, the Court has found (at [262]} that the Department has ‘intentionally, or at least recklessly, acted in disregard of the applicant’s rights.’ In particular, the Court found that there was no evidence that the Department took any steps to arrange for the release of Mr Burgess once the Court decision was made, meaning that he still held a visa, and instead focused only on arranging for a new decision to be made by the Minister. As demonstrated in the previous challenges to Mr Burgess’ visa cancellations, and through cases such as s Guo v Commonwealth [2017] FCA 1355 and Carrascalao v Minister for Immigration and Border Protection (2017) 252 FCR 352, this is not an isolated incident. There is a pattern of the Minister and Department acting in deliberate disregard of orders of the Federal Court and knowingly choosing expediency over the rights of individuals not to be imprisoned without lawful justification.

Secondly, the decision highlights that the Department has been relying on an incorrect construction of the sections of the Act that govern how an individual can continue to be detained in immigration detention that has potentially far-reaching implications. The Court held that in order for an individual to be detained, an identified detaining officer of the Department must at all times maintain a reasonable suspicion that the individual is an unlawful non-citizen. To date, the Department had been interpreting and applying the Act such that they considered that an officer only needed to have a reasonable suspicion at the time of initial detention, and that the Act then authorised the continuing detention of the applicant irrespective of whether any particular officer still held that reasonable suspicion.

The High Court has previously held that immigration detention can only be justified if it is for a recognised purpose, and the removal from Australia is one such recognised purpose. As highlighted by His Honour at [151], ‘the ongoing reasonable suspicion by a detaining officer that a person is an unlawful non-citizen provides the link between the detention and the purpose of removal from Australia of an unlawful non-citizen’.

This decision is therefore vital in protecting the rights of individuals to only be detained where that detention is justified for a lawful purpose.