Justice Flick said Mr Tudge had “intentionally and without lawful authority been responsible for depriving a person of his liberty”, and his “conduct exposes him to both civil and potentially criminal sanctions, not limited to a proceeding for contempt”.

“In the absence of explanation, the minister has engaged in conduct which can only be described as criminal,” Justice Flick said.

Principal Mark Northam and solicitor Sergio Zanotti Stagliorio from Northam Lawyers represented the asylum seeker known as PDWL on a pro bono basis.

Mr Stagliorio, the solicitor who had the carriage of the matter, told Lawyers Weekly that this case stands as an authority for three propositions.

Mr Stagliorio said that even if a body such as the Administrative Appeals Tribunal, in making an administrative decision, correctly applies the law as then interpreted by a court, that administrative decision might be retrospectively invalid if a higher court subsequently overturns that interpretation.

“The tribunal, in the particular circumstances of this case, did not have authority to grant PDWL a visa under s 65 of the Migration Act 1958 (Cth), as it was reviewing a decision to refuse to grant a visa made under s 501, not a decision under s 65,” Mr Stagliorio said.

“However, his honour did not express a conclusive view on this point, as it was unnecessary to do so, given the first proposition above.

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“If a party (including the minister) succeeds on the merits of court proceedings, courts can nonetheless exercise their discretion to refuse to grant that party any relief if the courts are satisfied that that party has engaged in disentitling conduct.”

The case relates to a man known as PDWL, who arrived in Australian in 2012. He applied for a temporary protection visa four years later, fearful for his safety should he be returned to Afghanistan.

On 18 December 2019, five days after Mr Tudge became acting minister, a Home Affairs official refused to grant the visa because PDWL had pleaded guilty to assaulting his friend in March 2018 in a drunken fight over a mobile phone.

Then on 11 March, the Administrative Appeals Tribunal reversed the decision, on the basis that PDWL is no risk to the Australian community. The minister immediately appealed against the decision.

Despite the grant of the visa, PDWL was not released from Yongah Hill Immigration Detention Centre in Western Australia.

On 12 March, Federal Court Judge Michael Wigney ordered Mr Tudge to file a statement from the Home Affairs Department explaining why PDWL was still in detention.

It is understood Marian Otigwoheh Agbinya, a solicitor employed as an acting assistant secretary in the department, then told the court she knew why PDWL remained in detention but refused to explain because it would “reveal legal advice that is subject to legal professional privilege”.

He was released after a judgment in the Federal Court on 17 March, after Justice Wigney said he had remained in detention “because the minister did not like the tribunal’s decision”.

In his judgment, Justice Flick agreed the tribunal had made the wrong decision, but found the minister was not entitled to keep PDWL in detention merely because he had filed an appeal.

“The minister cannot place himself above the law,” Justice Flick said. “The minister has acted unlawfully.

“The duty judge in the present proceeding was quite correct to describe the minister’s conduct as ‘disgraceful’. Such conduct by this particular minister is, regrettably, not unprecedented.”

Labor’s shadow home affairs minister, Kristina Keneally, said this case reflected “a government where standards don’t seem to matter and ministers won’t take responsibility for the actions of the departments.”

Ms Keneally stated it was the “second time Tudge is facing contempt of court”, a reference to a controversy in 2017 in which Tudge and two other senior ministers apologised for comments about the sentencing of terrorists, avoiding contempt charges.

Mr Tudge has strongly rejected the suggestions of improper conduct, and on Thursday Australia’s first law officer backed him.

“It’s not the first time that in the robust environment of the law surrounding visa approvals, that there’ve been strong words said about what is in effect the government undertaking its duties through the minister as a matter of policy,” Attorney-General Christian Porter said.

“We take a very strong view as a government on these matters.”