Last month, the Federal Court criticized the conduct of the Acting Immigration Minister Alan Tudge and said he had “unlawfully deprived” the man PDWL – an Afghani asylum seeker of his liberty, after the minister failed to immediately release PDWL from immigration detention once he was awarded a temporary protection visa.
PDWL had applied for a protection visa in 2016 and while his application was still pending, he engaged in a fight and was charged, convicted and sentenced to more than 12 months’ imprisonment.
Under the Migration Act 1958 if someone is sentenced for more than 12 months of a crime in Australia, he fails the character test requirements of the Act and thus loses his right to settle in Australia. Accordingly, the department rejected his application in 2019. PDWL lodged an appeal with the AAT.
What makes this case unique is the fact that the AAT not only overturned the department’s decision, it actually gave him the protection visa. AAT only had the power to review and overturn the decision of the department and order the department to reconsider his case. It did not have the power to grant the protection visa, but it did.
The minister Alan Tudge took time to consider his options before appealing the decision in the Federal court. During that period, despite the AAT having given PDWL the protections visa (although wrongly) he was NOT released and remained in detention.
Hearing the case Federal Court Judge Geoffrey Flick said the Minister had ignored the finding of the AAT in delaying PDWL’s release, and had acted as if he was “above the law”.
“In the absence of explanation, the Minister has engaged in conduct which can only be described as criminal,” Justice Flick had said.
So upset was Justice Flick that despite finding that the AAT did not have the power to give PDWL the protection visa, that the judge allowed PDWL to stay in Australia.
And now asylum seeker PDWL has filed a civil claim against the government for ‘false imprisonment’, according to ABC news.
“Our client PDWL has filed a civil claim against the Commonwealth for false imprisonment related to the period of time he continued to be detained by the Commonwealth after being granted a visa by the Administrative Appeals Tribunal,” PDWL’s lawyer Mark Northam told the ABC.
“This case speaks directly to the point that the Government cannot simply ignore or not act on decisions by courts or tribunals that it does not agree with, especially in cases like this one where a person’s liberty and freedom are at stake.”
PDWL claims he suffered from anxiety and his continued detention exacerbated mental stress.
The Department is planning to appeal Justice Flick’s decision.
Alan Tudge has strongly rejected the judge’s description of his conduct.