Alan Tudge unlawfully deprived an asylum seeker of his liberty, leaving him in detention for five days because he thought the tribunal that ordered his release got the law wrong.
In a scathing decision on Wednesday, the federal court found the acting immigration minister “engaged in conduct which can only be described as criminal” – exposing him to both civil and potentially criminal sanctions, including for contempt of court.
Justice Geoffrey Flick warned the minister he “cannot place himself above the law”, and allowed the Afghan man to keep the visa awarded to him by the Administrative Appeals Tribunal despite agreeing that it had got the law wrong. Tudge has denied that he acted improperly, but refused to comment further pending a possible appeal.
The asylum seeker, a 34-year-old citizen of Afghanistan of Hazara ethnicity referred to as PDWL, applied for a safe haven enterprise visa in 2016 on the basis that his work in the Afghan army would put him at risk from the Taliban.
On 18 December 2019 – five days after Tudge become 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.
On 11 March 2020 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 a federal court judge ordered Tudge to file a statement from the home affairs department explaining why PDWL was still in detention.
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”.
On 17 March, the federal court found PDWL was still in detention simply because “the the minister did not like the tribunal’s decision”. PDWL was released pursuant to a court order that day.
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 failed to explain why PDWL had remained in immigration detention and did not comply with the 12 March order, he said, and no “real explanation” had yet been provided.
Justice Flick said the minister’s conduct was “disgraceful” and exercised the court’s discretion to refuse to overturn the tribunal’s decision, leaving PDWL with his visa.
“The minister has acted unlawfully. His actions have unlawfully deprived a person of his liberty,” the judge said.
“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.”
Guardian Australia understands Tudge’s potential civil liability could include a suit for false imprisonment.
Labor’s shadow home affairs minister, Kristina Keneally, said: “This is a government where standards don’t seem to matter and ministers won’t take responsibility for the actions of the departments.”
Keneally noted 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 sentencing of terrorists, avoiding contempt charges.
“How many times will he be given a chance?
“Scott Morrison needs to explain why he believes the law doesn’t apply to him or his ministers and why it seems there is one rule for his ministers and another rule for normal Australians.”
A spokeswoman for Tudge said he “strongly rejects any suggestion of improper conduct in these proceedings”.
“The minister is considering the reasons for the court’s decision and options for an appeal. Therefore, it would not be appropriate to comment further.”
A spokesperson for the prime minister said he would not “comment on matters that may be subject to further proceedings and pre-empt their outcomes”.
