Alan Tudge has claimed the federal court found he had engaged in “criminal” conduct in part because he was mistaken for the home affairs minister, Peter Dutton.
In a full federal court appeal, heard on Thursday, Tudge’s lawyers complained that the former acting immigration minister had been blindsided by the finding in an asylum seeker detention case and asked for it to be overturned.
Geoffrey Kennett submitted that justice Geoffrey Flick made an error accusing “this particular minister [Tudge]” of a history of “disgraceful” conduct because he cited an earlier case against Dutton in which the home affairs minister delayed a decision to grant a visa.
In September, the federal court found that Tudge had unlawfully deprived an asylum seeker of his liberty, leaving the man in detention for five days because he thought the tribunal that ordered his release got the law wrong.
The man, a 34-year-old Afghan citizen of Hazara ethnicity referred to as PDWL, is now suing for false imprisonment.
In a scathing decision, Flick said “in the absence of explanation, [Tudge] has engaged in conduct which can only be described as criminal”, potentially exposing him to sanctions including for contempt of court.
That was because after a court order to explain why the Afghan asylum seeker PDWL had not been released, the home affairs department acting assistant secretary, Marian Otigwoheh Agbinya, wrote back refusing and claiming that to do so would “reveal legal advice that is subject to legal professional privilege”.
On Thursday, Kennett claimed that this response did comply with the order, that even if it were interpreted as an attempt to “slide through with something substandard” it did not amount to wilful defiance.
Justice Neil McKerracher responded this was a “very surprising” submission because there was “no explanation at all” why PDWL was left in detention and it was fair to say the reason was “concealed”.
Kennett took issue with Flick’s admonishments that Tudge “cannot place himself above the law” and the suggestion he didn’t release PDWL because he “didn’t like” the tribunal’s decision granting him a visa. These findings of “wilful defiance” needed to be put squarely to Tudge and weren’t, he said.
Kennett submitted that although lawyers were warned the minister’s conduct of the case was “disgraceful”, the suggestion it could be described as “criminal” was “never remotely suggested” in the hearing of the original case.
Kennett quoted passages from the hearing in which the judge said the “same minister had been subject to some degree of criticism” and that “yet again” he was defying the court – both apparent references to Dutton that Kennett conceded he “didn’t pick up at the time and seek to correct”.
In his decision, Flick said that Tudge’s “disgraceful conduct” was “regrettably not unprecedented”, citing an earlier case he had heard in which Dutton narrowly avoided a contempt of court finding.
“In fact – it’s just not correct,” Kennett said. “The particular minister in this case [Tudge], is not the minister for home affairs subjected to criticism in the earlier case.”
Kennett concluded that it was “clearly procedurally unfair for findings of this level of seriousness” to result in PDWL retaining his visa against Tudge’s wishes – the ultimate outcome of the case Tudge now seeks to overturn.
Tudge’s lawyers attempted to rely on a further affidavit from Agbinya, in which she says there was no contact with Tudge or his office, and the decision to keep PDWL was taken by the department after some contact with advisers in Dutton’s office.
Tudge “played no role in deciding whether [PDWL] should be released or not”, he claimed, so there was “no proper basis” for the claim Tudge had placed himself above the law.
Rather, the department relied on advice from its counsel that PDWL “probably” could be detained although there was a risk to do so, he said.
PDWL’s counsel, Chris Horan, submitted that although the designation of “criminal” was not put to Tudge’s lawyers, the conduct Flick complained of was clearly identified.
“The central thread in his honour’s findings was there had been a conscious failure to release PDWL from detention, resulting in him being unlawfully detained; and a conscious failure to comply with the spirit of the order for explanation,” he said.
Horan submitted it was irrelevant that Tudge was not the one to decide to keep PDWL in detention, because the adverse findings were “directed at him as a party to the proceedings” and they “encompass the conduct of all relevant officers of the department who acted on his behalf”.
Horan submitted that both the immigration and home affairs ministers are responsible for issuing visas and so there was “no real difference” which was named as a party.
Despite the claim Flick had confused Tudge and Dutton, Horan noted that both ministers were listed as respondents in the earlier case he cited.
Guardian Australia contacted Dutton for comment.
