The case relates to an Afghan refugee of Hazara ethnicity who arrived in Australia in 2012 and applied for a Safe Haven Enterprise refugee protection visa in 2016.

The March 2020 decision by Justice Michael Wigney at the Federal Court of Australia criticised the Minister for Immigration, who had continued to detain the man “simply because [he] did not like the tribunal’s decision.”

Initially, PDWL was refused a protection visa after failing to meet the character test requirements under the Immigration Act due to an earlier criminal conviction. 

But on 11 March 2020, the Administrative Appeals Tribunal overturned the department’s decision and granted him with the protection visa.

Immigration Minister David Coleman then appealed that decision to the Federal Court, but instead of releasing PDWL – as they were legally obliged to do – the government continued to hold him in immigration detention.

In a 24-page decision, Justice Wigney repeatedly criticised the government for continuing to hold the man in immigration detention for several days after having informed the court that he was “in the process of being released.”

Further, Justice Wigney described as “disgraceful” the minister’s response to an order made by Justice Melissa Perry requiring an officer of the Department of Immigration with actual knowledge of the matter to file an affidavit with an explanation as to why PDWL was still in detention.

VIEW ALL

That response consisted of a statement from a government lawyer that said that the information could not be provided to the court because of legal professional privilege.

Justice Wigney said the minister had “willingly and flagrantly failed to comply” with the court order by Justice Perry and stated that “the conduct of the minister in this case, on just about any view, has been disgraceful” and that “[t]he affidavit filed in purported compliance with that order contained no such explanation. Rather, it sought to conceal any explanation behind the cloak of legal professional privilege.”

Mr Zanotti Stagliorio from Northam Lawyers, who represented PDWL pro bono, said the ruling was a reminder that the Minister for Immigration was not above the law. 

“We took this case on a pro-bono basis and urgently assembled a team in two hours, because a man was being denied his freedom after he was granted a visa,” Mr Stagliorio of Northam Lawyers said.

“That was in direct violation of section 196 of the Migration Act 1958 (Cth), which requires the government to release a detainee upon grant of a visa.”

Principal solicitor Mr Northam of Northam Lawyers said this case is about how the rule of law protects all of us from overreach by the government. 

“The minister cannot simply ignore or fail to act on a decision of a court or tribunal because the minister might not like that decision,” Mr Northam said.

“We all have to live with the decisions of the courts and tribunals, including the mnister. We can only hope that this case sends a strong message both to the government and to anyone who may be unjustly held in immigration detention.”

The legal representatives of PDWL were solicitors Mr Zanotti Stagliorio and Mr Northam of Northam Lawyers and barristers Dr Jason Donnelly and Kevin Tang.

The complete judgment of the Federal Court in the matter of PDWL is available at: https://www.judgments.fedcourt.gov.au/judgments/Judgments/fca/single/2020/2020fca0394