The full federal court has allowed Alan Tudge’s appeal against a judgment that while acting immigration minister he “engaged in conduct which can only be described as criminal”.
In a joint decision three justices rejected controversial findings that Tudge personally had unlawfully deprived a person of his liberty by leaving him in detention for five days, instead attributing the failures to the home affairs department.
In March 2020 the Administrative Appeals Tribunal granted a safe haven enterprise visa to an asylum seeker, a 34-year-old citizen of Afghanistan of Hazara ethnicity referred to as PDWL.
Despite the grant of the visa, PDWL was not immediately released from Yongah Hill Immigration Detention Centre in Western Australia because the home affairs department believed the tribunal had got the law wrong.
In the September 2020 decision, justice Geoffrey Flick allowed PDWL to keep the visa and issued a scathing decision accusing Tudge of engaging “in conduct which can only be described as criminal” – exposing him to both civil and potentially criminal sanctions, including for contempt of court.
On Thursday the three justices found that “some of the criticism” directed at Tudge “albeit in reality to the minister’s department, rather than the minister personally, was warranted”.
But they concluded that the “suggestion that the minister may have acted criminally could only be understood as a personal criticism” levelled without having offered Tudge a chance to respond.
In fact, Tudge had “no relevant knowledge at all of the circumstances which gave rise to both the justified and unjustified criticism”, they said.
“It also appears likely that the learned primary judge confused the minister with the minister for home affairs [Peter Dutton].”
Justice Flick had said that “this particular minister” had a history of “disgraceful” conduct but then cited an earlier case against Dutton in which the home affairs minister delayed a decision to grant a visa.
The three justices found that those responsible for the decision in the home affairs department were “acting conscientiously on legal advice received” that advised the tribunal’s decision was a “nullity” because it had misstated the law.
Counsel advised the department that “the continued detention of the respondent was not likely to have any further consequences if the court accepted the tribunal’s decision was beyond jurisdiction”, they said.
The decision to keep the man in detention was therefore not disrespectful of the law, although the court was correct to strongly criticise the failure to release him and “the concealment of the true reasons for [that] failure”.
The failure to explain to the court why PDWL was detained fell “well short of the standard that is to be expected of a model litigant such as a minister”, they said.
But Tudge played no role in that failure, and “at no time” was he consulted – meaning Flick was wrong to accuse him of detaining PDWL merely because he “did not like” the tribunal’s decision, thereby placing himself “above the law”.
The full federal court allowed the appeal, and remitted the matter back to the tribunal to reconsider the visa decision.
