Morrison v Minister for Immigration and Citizenship (includes Corrigendum dated 11 February 2008) [2008] FCA 54 (8 February 2008)

SCOTT MORRISON v MINISTER FOR IMMIGRATION AND CITIZENSHIP
WAD 94 OF 2007

MCKERRACHER J
8 FEBRUARY 2008 (CORRIGENDUM 11 FEBRUARY 2008)
PERTH

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY	WAD 94 OF 2007

BETWEEN:	SCOTT MORRISON Applicant
AND:	MINISTER FOR IMMIGRATION AND CITIZENSHIP Respondent

JUDGE:	MCKERRACHER J
DATE OF ORDER:	8 FEBRUARY 2008
WHERE MADE:	PERTH

I certify that the preceding one (1) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice McKerracher.

MIGRATION – cancellation of visa by Minister – substantial and serious criminal record of applicant – application for review, prohibition and certiorari – limited to jurisdictional error – alleged failure to give weight to essential factors – alleged absence of evidence on which to reach conclusion as to view of Australian public – alleged failure to consider recent untested criminal charges

MIGRATION - alleged violent and unlawful arrest, detention and removal including alleged deprivation of opportunity to obtain legal advice and representation regarding the Minister’s visa cancellation decision – no finding made to support alleged claim

Held: The application is dismissed.

Migration Act 1958 (Cth) ss 5, 13, 14, 189, 189(1), 193(1)(a)(iv), 196, 198, 256, 476A, 501, 501(2), 501(6)

Lu v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 340; (2004) 141 FCR 346
M238 of 2002 v The Honourable Phillip Ruddock, Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 260
Minister for Immigration and Citizenship v Haneef [2007] FCAFC 203
Morrison v Minister for Immigration and Citizenship [2007] FCA 723
Pull v Minister for Immigration and Multicultural and Indigenous Affairs [2007] FCA 20
Preston v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCA 107
Ruddock v Taylor (2005) 222 CLR 612
R v Ul-Haque (2007) NSWSC 1251
State of New South Wales v Riley [2003] NSWCA 208; (2003) 57 NSWLR 496

SCOTT MORRISON v MINISTER FOR IMMIGRATION AND CITIZENSHIP
WAD 94 OF 2007

MCKERRACHER J
8 FEBRUARY 2008
PERTH

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY	WAD 94 OF 2007

BETWEEN:	SCOTT MORRISON Applicant
AND:	MINISTER FOR IMMIGRATION AND CITIZENSHIP Respondent

JUDGE:	MCKERRACHER J
DATE OF ORDER:	8 FEBRUARY 2008
WHERE MADE:	PERTH

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY	WAD 94 OF 2007

BETWEEN:	SCOTT MORRISON Applicant
AND:	MINISTER FOR IMMIGRATION AND CITIZENSHIP Respondent

JUDGE:	MCKERRACHER J
DATE:	8 FEBRUARY 2008
PLACE:	PERTH

1 The applicant, Mr Morrison, is a citizen of the United Kingdom. He first arrived in Australia on 15 March 1977. He was then 12 years old. It appears that he did not enjoy a particularly privileged secondary education. Three years later his criminal record commenced. He now has 95 convictions. On 21 August 1990 he was convicted of a charge of attempted murder and was sentenced to 7 years 10 months imprisonment. In May 2007, Mr Morrison was suddenly and forcibly detained and deported from Australia to the United Kingdom by officers acting on behalf of the Minister. Although Mr Morrison had been given considerable advance notice as to the possibility of his deportation, and had made submissions opposing it, the actual decision to proceed with the deportation and its execution were carried out swiftly, aggressively and without further notice to him. While at the airport awaiting his deportation to the United Kingdom, Mr Morrison sought urgent interlocutory relief to restrain the Minister from causing his deportation to occur. That relief was declined. He has now pursued this application seeking orders quashing the Minister’s decision so that he may return to Australia. He contends that both the Minister’s decision and its manner of execution were unlawful and therefore beyond the jurisdiction and power of the Minister. For reasons appearing below the relief sought can not be granted. The circumstances in which such relief may be granted are quite limited. This case does not fall into the limited category of cases in which relief of the nature sought may be granted.

2 These proceedings are an application for review. The application is brought pursuant to s 476A of the Migration Act 1958 (Cth) (the Act). The scope for review is limited to identifiable jurisdictional errors. Errors of law which constitute jurisdictional error are the only basis on which the Court may grant relief in proceedings such as the present: Minister for Immigration and Citizenship v Haneef [2007] FCAFC 203 at [63].

3 Mr Morrison sought an urgent interim injunction to prevent his removal from Australia on 8 May 2007. That motion was heard by French J who dismissed it: Morrison v Minister for Immigration and Citizenship [2007] FCA 723. Two days later Mr Morrison filed an application for review which has since been amended on various occasions.

4 The current form of the amended application for review focuses on complaints about the actions of the Minister (or the Department of Immigration and Citizenship (DIAC) for the Minister) at two different times. The first is at the time of cancellation of Mr Morrison’s visa by the Minister in February 2006. The second is at a later time. The second complaint is of a different and serious nature. It is, in essence, that the detention and removal of Mr Morrison from Australia was contrived in a special manner which was intended to preclude his ability to obtain adequate legal representation such that he was deprived, in effect, of the jurisdiction of the Court to review the Minister’s decision. The amended application is in the following terms:

5 Section 501 of the Act deals with the refusal or cancellation of visas on character grounds. These provisions and their effect have now been extensively examined by the Full Court in Haneef [2007] FCAFC 203. By s 501(2), the Minister may cancel a visa if he or she reasonably suspects that the person does not pass the character test and also if the person does not satisfy the Minister that the person passes the character test. There are two elements to s 501(2) and the second of those elements must contemplate the opportunity for the person concerned to attempt to satisfy the Minister that the person passes the character test.

6 The character test in turn is defined by s 501(6) for the purposes of the Act. Specifically, a person will not pass the character test if the person has a substantial criminal record. Such a record is expressly defined by subs (7). Subsection (7) provides that a substantial criminal record is held if a person has been sentenced to a term of imprisonment of 12 months or more.

7 There are further provisions of the Act relevant to this application. By ss 13 and 14, lawful non-citizens and unlawful non-citizens are defined. By s 13, a lawful non-citizen is a non-citizen in the migration zone who holds a visa that is in effect. An unlawful non-citizen, by s 14, is a non-citizen in the migration zone who is not a lawful non-citizen. There is no doubt that at all relevant times, Mr Morrison was in the migration zone.

8 The characterisation within these descriptors has a bearing on the consequences provided for in the following reasons.

9 By s 189 of the Act, provision for detention of unlawful non-citizens is set out. Relevantly that section provides that if ‘an officer knows or reasonably suspects that a person in the migration zone (other than an excised offshore place) is an unlawful non-citizen, the officer must detain the person’ (emphasis added). An officer is defined by s 5 of the Act to include an officer of DIAC and a member of the Australian Federal Police (AFP) or the Police Force of a State.

11 The consequence of the detention itself, is then dealt with (relevantly for present purposes) by s 196 of the Act. That section provides:

12 Section 198 of the Act deals with the removal from Australia of unlawful non-citizens. Relevantly s 198(2A) provides:

13 In short, as will be seen below, the Minister authorised the detention of Mr Morrison under s 189(1) of the Act on the basis that he was a non-citizen ‘covered by sub-paragraph 193(1)(a)(iv)’. That sub-paragraph provides that Mr Morrison is a non-citizen because of a decision the Minster has made ‘personally under section 501, 501A or 501B to refuse to grant a visa to the person or to cancel a visa that has been granted to the person’.

16 On 16 February 2007, DIAC provided the Minister with submissions and annexures to enable the Minister to consider whether or not Mr Morrison’s visa should be cancelled.

17 As that submission correctly records, Mr Morrison had originally been notified by mail on 4 July 2005 of the Intention to Consider Cancelling the visa held by him pursuant to s 501 of the Act. The cancellation grounds were set out in the notification and he was invited to submit to DIAC any comment that he believed to be relevant to the consideration of the issue of visa cancellation. A signed acknowledgment of receipt was received on 22 August 2005.

18 As Mr Morrison did not respond, another notice of Intention to Consider Cancellation was sent to him on 22 May 2006. Mr Morrison responded by submission received on 8 June 2006 which included letters of support from Ms Maria Roberts (his fiancée) and several friends and associates. Copies of several certificates including certificates of business registration and copies of letters in relation to Mr Morrison’s complaint against police were also included. Letters of support were subsequently received from Ms Janette Bowra, his mother on 8 June 2006 and from his sister on 22 June 2006.

19 It is common ground that by February 2007 when DIAC’s submission was made to the Minister, DIAC was aware that Mr Morrison had appeared in the District Court of Western Australia to answer a serious criminal charge of doing grievous bodily harm with intent. The allegation is that he shot a man in the leg. The trial date in respect of that charge had been vacated for reasons not presently relevant. DIAC did not refer to that charge in the submission to the Minister. Mr Morrison makes submissions in relation to that omission and I will refer to those below. One matter to be clarified is that as at the date of the original notification on 4 July 2005, Mr Morrison had not been charged with this offence of unlawful wounding and therefore any response by him in relation to that charge was not possible.

20 The Minister was given Mr Morrison’s submission. It was observed that the offences which rendered Mr Morrison for consideration under s 501 of the Act were the conviction on 21 August 1990 in the Supreme Court of Western Australia at Perth for entry of a dwelling with intent for which he was convicted and sentenced to three years imprisonment concurrent with his conviction for attempted murder for 7 years and 10 months imprisonment. By mid-2006, Mr Morrison had been convicted of approximately 90 other offences. Reference was made to the sentencing comments of the Hon Justice Walsh in the Supreme Court of Western Australia to the effect that Mr Morrison had acted with considerable premeditation and the nature of the assault in the course of the attempted murder was brutal and repetitive.

21 The Minister also received the letter from Mrs Janette Bowra, Mr Morrison’s mother, explaining that in 1990 her 17 year old niece, Janette, was allegedly killed by her fiancé, an ex-police officer, who was then 34 years of age. Her son, being very close to Janette went ‘haywire over it all in throes of grief and alcohol ...’. She went on to say that her son (Mr Morrison) ‘... was in such a wasted state that he stabbed himself, needing nine stitches and was allowed medical treatment himself only after he signed his statement for the police’.

22 DIAC’s submission to the Minister was prepared in sections, the first being under the heading of ‘Consideration of Visa Cancellation’ which dealt at length with the previous convictions. The second section was headed ‘The Best Interest of the Children and dealing with Article 3.1 of the Convention on the Rights of the Child’. There was then a further section dealing with ‘Other Considerations’. In this regard reference was made to the nature of the visas held, making the point that Mr Morrison was the holder of two permanent visas, a Transitional (permanent) visa and an Absorbed Person visa. It was explained that since 1 September 1994, s 34 of Act provides that persons who had ceased to be immigrants before 2 April 1984 and had not left Australia between that date and 1 September 1994 were taken to have been granted an Absorbed Person visa thus bringing them within the universal visa system. These people, therefore, remained subject to the provisions of the Act and the character provisions of the Act.

23 The submission then focused on the degree of hardship which would be caused to the immediate family members lawfully resident in Australia.

24 Other than by the omission of reference to the charge in the District Court, the submission itself does not appear to be under any attack. My impression is that it was reasonably comprehensive providing both material which would invite the Minister to form a view for visa cancellation and also material to the contrary.

25 On assessment of that material, however, the Minister on 20 February 2007 considered that the seriousness of Mr Morrison’s offences and to a lesser extent the expectations of the Australian community outweighed all other considerations and, therefore, having given full consideration to all of the matters he decided to exercise his discretion to cancel Mr Morrison’s visas under s 501(2) of the Act.

26 There is one particular section of the Minister’s determination which is of importance to the argument advanced for Mr Morrison. That section reads as follows:

27 From the perspective of the Minister, the starting point is an affidavit sworn the day before Mr Morrison’s removal, in anticipation of an injunction application by him.

28 Mr Richards, Assistant Secretary of the Compliance Operations Branch of DIAC had sworn an affidavit on 7 May 2007 in anticipation of the potentiality of proceedings being issued the following day by Mr Morrison to restrain his removal from the country. That anticipation proved to be correct.

29 The purpose of this affidavit was to outline the history and reasons behind the steps that were taken for the removal of Mr Morrison. Mr Richards referred to DIAC records showing that Mr Morrison was born in Scotland in 1965 to citizens of the United Kingdom and that on 20 February 2007 the Minister cancelled Mr Morrison’s visa pursuant to s 501(2) of the Act. Since cancellation of the visa of Mr Morrison, officers of DIAC had been conducting inquiries and planning his location and detention in accordance with the provisions of s 189 of the Act. He pointed to the fact that Mr Morrison had an extensive criminal history, particularly involving violence and of particular concern was his conviction in 1995 of attempted murder and a then current charge before the District Court of Western Australia in respect of assault occasioning grievous bodily harm and unlawful wounding. He said that officers of DIAC had worked closely with members of West Australian Police (WAPOL) who had supplied DIAC with information based on Mr Morrison’s history and a document setting out the risks in detaining him.

30 He confirmed that WAPOL had assessed Mr Morrison as posing a high risk and had advised that they had received information that he had made threats against officers of DIAC. He also annexed an assessment from the Western Australia Department of Corrective Services which assessed Mr Morrison as posing a high risk in its assessment of 15 April 2007. This evidence was adduced not as to its truth but as to the information on which DIAC and the Minister say that they reasonably relied.

31 As a result of the information received from these sources, DIAC had formed the view that Mr Morrison posed a significant risk to DIAC’s officers. The information was substantially more detailed than the short summary in these reasons. I stress that Mr Morrison disputes a great deal of the descriptions attributed to him. He contends that WAPOL and others have exaggerated and fabricated both their concerns and the basis of them. He attributed this to long running disputes between himself and WAPOL.

32 I do not, in order to address the issues raised in these proceedings, need to determine the truth or otherwise of the assertions about the level of risk posed by Mr Morrison or his propensities. It is clear that DIAC and the Minister did receive and, in my view, reasonably rely upon the various accounts from the official sources that are referred to in these reasons. Mr Morrison was given the opportunity to comment on the substance of most of those matters in 2005 and did so.

33 Although, on 28 April 2007, the Minister had written to the Western Australian Minister for Corrective Services requesting Mr Morrison be placed within a Western Australian correctional facility whilst in immigration detention, as at that stage the Minister had received no response to that request (I observe that this was only a little over a week before the events the subject of these proceedings). DIAC had also attempted to mitigate the risks considered to be posed by the views expressed as to Mr Morrison’s propensities, by seeking approval from WAPOL to accommodate Mr Morrison in the Perth Watch House 48 hours after his initial detention. There was reluctance to hold Mr Morrison in the Perth Immigration Detention Centre which was a place of administrative detention not a correctional facility and which did not have the physical security measures or resources associated with correctional facilities.

34 Mr Richards observed that Mr Morrison had an extensive criminal history, a history of violent behaviour in correctional facilities, two charges of escaping legal custody and two charges of assaulting police. He was also said to be ‘known’ to have associations with motor cycle gangs and there was a concern that those associates may attempt to intervene in his immigration detention.

35 Despite DIAC’s usual policy of allowing people to be removed from Australia with at least 48 hours notice, it was considered that because of the extraordinary nature of this case and the special risks posed by the propensities of Mr Morrison that DIAC would cause him to be removed from Australia as soon as reasonably practicable and prior to the expiration of the 28 day period within which an application for judicial review might be lodged.

36 A Justice Intelligence Service Prisoner Risk assessment provided in confidence to DIAC informed it that Mr Morrison was a high risk of escape during movement, a risk of extreme violence, an elevated risk of self-harm, required a maximum security rating and had self-harm potential. DIAC was advised to watch for knives. Reference was made to ‘extremely violent offences’ and to being ‘found in possession of a home made [prison issue] key (2005), increased evidence of paranoia, previous self-harm attempted by banging his head against a wall, and heightened threat towards female staff’. I repeat that Mr Morrison also denies many aspects of this report.

37 The report went on to observe that Mr Morrison had shown a propensity towards violence throughout his criminal career, showing little or no regard for the consequences of his actions and displaying little or no empathy towards his victims. It said:

39 The report expressed a view that Mr Morrison, after being arrested and awaiting deportation, would ‘react in a violent manner against public officers, including prison staff and against himself through acts of self-harm’.

40 His offences were described as having commenced in 1989 and continued steadily. They included driving under the influence, disorderly conduct, resisting arrest, unlawful assault, driving without a motor driver’s licence, assault occasioning bodily harm, threatening behaviour, damage, further assault, assaulting a public officer, further assault, further assaulting a public officer, refusing a breathe test, resisting arrest, attempted murder, entering a dwelling with intent, assault occasioning bodily harm, assault not otherwise specified, aggravated assault, being a prohibited person on licensed premises, resisting arrest, being unlawfully on premises and a further assault charge. He had served sentences in more than a dozen different correctional centres in Western Australia.

41 The reasons for his removal and the manner adopted were recorded by DIAC as being as follows:

43 In relation to some of the material describing his background character and propensities, there is reference to his crimes having been preceded by the use of illicit drugs or excessive alcohol. Mr Morrison says that he accepts that his previous offences have been related to the excessive use of alcohol. He smoked marijuana as a young man but has not done so for 20 years. He says he has never been involved in solvent or any other illegal drug use and has never been a member of any motorcycle or other gang and has never been involved in any gang activity, legal or illegal. However, he says there has been long running antagonism between himself and WAPOL and he accepts that he has reacted badly on occasions. He was upset when he believed that he was wrongly convicted and imprisoned in 2004. He was also upset at being charged and held for approximately nine months without bail for an alleged offence of which he had no knowledge or involvement in 2005. He says, nevertheless, that on neither occasion did he react with violence and there was no violence at all whilst he was being held in prison. He has had verbal exchanges. He says:

44 There is also reference in the materials on which I comment below to his ownership or interest in firearms. He denies that he has ever owned or had any interest in firearms. The only interest he has had in something that could be used as a weapon is in two ceremonial swords which are on the wall of his fiancée’s home.

45 As the day of his removal drew closer, in a situation report prepared on 3 May 2007, the status of events within DIAC was relevantly recorded as follows.

46 There is no doubt that the events of 8 May 2007 when Mr Morrison was suddenly detained and removed from Australia came as a complete shock to him and his family.

47 Mr Morrison gave evidence in these proceedings on affidavit and was cross-examined by telephone from his present abode in the city of York in the United Kingdom.

48 He was born in 1965. He had never departed from Australia from the time of his arrival in 1977 until his removal on 8 May 2007. He has four children in Australia and says that he has a very close relationship with all of his children including his son from a previous relationship and three children from the relationship with his fiancée, Ms Maria Roberts. He says that he also acts as a father figure to his fiancée’s three elder children, two girls and a boy.

49 Between February and May 2007, Mr Morrison lived at 32 Dixon Drive, Middle Swan with a male disabled friend whom he helped to look after. He also stayed at times at 19 Tour Place, Middle Swan with his fiancée, Ms Roberts. At that stage he was primarily working at Metropolitan Mobile Tyre Fitter as a tyre fitter. He was required to provide the WAPOL with his addresses and place of work, which he did. He believes that the Minister’s officers were in regular contact with WAPOL and that his addresses and work address were well known from early 2007.

50 Notwithstanding this, he complains that he was not informed at any time until his departure from the country was imminent, of the decision made by the Minister on 20 February 2007 to cancel his visa.

51 Mr Morrison’s fiancée, Ms Roberts also came into Australia in 1968. She was then one year old. She gave evidence on affidavit and was not cross-examined. She was born in France but both her parents are Portuguese and until recently she was a Portuguese citizen. She met Mr Morrison in early 2001. She also has three children aged 20, 16 and 12 years from her previous husband. She was divorced in 2002. She and Mr Morrison were intending to be married in January 2007 but at that stage he was facing the charges of unlawful wounding. She says that whilst she was satisfied there was no merit in those charges, the charges were stressful and they decided to wait until the charges were out of the way before marrying. It was intended that they would be married after the matter was originally listed for hearing in November 2006 but when the hearing was adjourned they put off the marriage until after the date at which the trial was to take place. Ms Roberts corroborates the other general evidence of Mr Morrison. She confirms that he was an extremely close and caring father to all of his three children with her and was also very fond of his son from the previous relationship.

52 In 2006 Ms Roberts had assisted Mr Morrison with the response to DIAC. Other than in relation to the charge pending in the District Court of Western Australia, there is no complaint as to failure to convey the substance of the response to the Minister.

53 Her evidence was that once they had heard nothing further from DIAC after their response, that she was not particularly concerned because she had understood that Mr Morrison would have a right of review of any adverse decision by the Administrative Appeals Tribunal, if indeed there was an adverse decision. For that reason, the events of 8 May 2007, she said, came as a complete surprise and was very shocking.

54 On the morning of 8 May 2007 he was with his fiancée, Ms Roberts in the ANZ Bank car park in Midland. They had attended to some minor financial matters and were intending to purchase a present for their daughter, Giordan, who turned 5 years old on that day. As they were walking together in the car park he noticed a car had pulled in ahead of him and a number of casually dressed males moved towards him and his fiancée and past them on both sides. Without any warning, he felt sharp blows to his chest and back and excruciating pain wracked through his body. He said he thought he was going to die. The pain, he says, was extreme. He was shocked and collapsed to the ground without any control over his movements. As the shock and pain subsided, he found himself facedown on the ground without being able to protect himself, bleeding from above his left eye and in pain in both knees which had been severely grazed. He says he was initially held on the ground and told not to move. It was only then that he realised that the people were police or similar officials. He was handcuffed and informed that all would be explained to him shortly. He was in a state of shock and was dazed and confused at this stage. As he was held and handcuffed he noticed two men removing, what he says, were four separate barbs and wires from his shoulder and chest regions. Prior to the attack he had not been challenged or spoken to by anyone. He now knows that the pain was the result of being struck with tasers.

55 Mr Morrison was taken to the steps of a nearby building where he was treated for the cut to his head. At that stage he was informed that he was an illegal alien and that his visa was revoked. He was taken to his fiancée’s home where some clothes were taken for him and he was told that he would be taken to the Midland Police Station and from there either to the Perth Immigration Detention Centre or to the Villawood Immigration Detention Centre in New South Wales. In cross-examination, at least at one point, he accepted that he may have been told then or at some stage that he might be removed from Australia as soon as practicable. He did not think however that this would be before he had some access to legal representation and time to do so.

56 There was also a dispute as to whether or not he declined an offer to make a phone call at this stage for the purpose of obtaining legal advice. When he arrived at the Midland Police Station he was again told that he would shortly be transferred either to Perth or Villawood. He says he was offered a phone call at the time of his arrival at the Midland Police Station. As he was still in shock and as he had recently left his fiancée at her house he did not believe there was any immediate urgency in contacting her. He was given no indication, he says, that he was about to be removed from Australia. He declined the offer saying he would wait until he was at the Perth Detention Centre before making a call.

57 He was left, he says, in a cell at the Midland Police Station for about an hour or two and during this time he repeatedly asked for the opportunity to smoke a cigarette because he was so stressed. He was permitted the opportunity to smoke four cigarettes. On the second occasion and because he had been held for some time he says he also asked if he could make a phone call to his fiancée, Ms Roberts. His evidence was that he was told by the police officer who took him for the cigarette that he had been instructed that he was not to be allowed to make any phone calls. This evidence is disputed.

58 The immigration officer, who Mr Morrison now knows to be Mr Battersby, returned at a later time and told him that he was going to be sent to London on a plane in a couple of hours. Mr Morrison asked to make phone calls to both his fiancée, Ms Roberts and to his lawyer whom he hoped could take steps to prevent his removal from Australia. He says he was told that he now had no right to make any phone calls as he had refused the earlier offer to make a phone call and that he had no legal rights in Australia as he was now in the country illegally. He says he received this information at about 1.00 or 2.00 pm. This evidence as to the phone calls is also in contention. He remained at the Midland Police Station for at least an hour or probably longer after receiving that information. In the course of this time, he says Mr Battersby produced a large pile of paperwork and asked him to sign and date it to confirm that it had been received. Mr Morrison signed the paperwork as requested but did not see that paperwork again until he arrived in London on the following morning. He says that he raised queries with the immigration officer concerned but was repeatedly told that the officer could not provide him with any information and to do so would be in breach of his duty not to divulge any information. He says ‘he continued to refuse to allow any phone calls’. Again this evidence is denied.

59 Mr Morrison says he was returned to the cell at Midland Police Station and as he was being taken there he overheard the immigration officer say to another person in the station that he was not to be allowed any phone calls until he had started boarding the plane. Again this evidence is disputed.

60 Subsequently he was taken from the Midland Police Station to the Perth International Airport and only ten minutes before the flight was due to board was he allowed to make a phone call to his fiancée to explain to her what was happening to him. He said that he believed that she then took steps to obtain an urgent injunction but it was too late to do so. From the time he left the Midland Police Station until boarding the flight to Bangkok, he was restrained in handcuffs and leg cuffs, both in turn chained to a leather waistband. During the flight from Perth to Bangkok he continued to be restrained in that way. However, at Bangkok he says the Thai authorities insisted that his treatment was inhumane and they would not allow him to fly in that condition from Bangkok to London. He says the Australian Immigration and Securities officers agreed to remove the handcuffs and other restraints. (The reason for the removal is also denied but little turns on this issue). At no time during that flight or at any time from when he was struck by tasers at the Midland Shopping Centre and taken into detention did he take any steps to resist in any way or make any threats of any type.

61 Mr Morrison now knows that the charge of grievous bodily harm laid against him in the Perth District Court has been discontinued by the Western Australian Director of Public Prosecutions. However he has been advised that he could be recharged at a future time and says that he believes that he should have been allowed to defend himself against the charge and to clear his name.

62 His arrival in the United Kingdom, he says was widely publicised including allegations that he was a ‘crime lord’ and that he had served time for ‘kneecapping a rival gang member’. He has been very depressed. He moved from Scotland, where the publicity was significant, to Yorkshire.

63 Mr Morrison maintains contact with his fiancée in Perth by telephone contact as best he can. He is aware from that contact that she and the children are suffering a great deal as a result of his continuing absence from them. He wishes to return to Australia and to be reunited with his family.

64 Ms Roberts describes the events of 8 May 2007 in similar terms to those expressed by Mr Morrison. She says that the officers took Mr Morrison away and took her house keys. She was directed that she could not leave until they were ready to leave with Mr Morrison. She waited until they were ready and then drove home. The officers followed her to her house. An immigration officer produced a search warrant at the house and they took Mr Morrison into the bedroom and then left with him and she was informed that he was being taken to the Midland Police Station. She said she telephoned Mr Morrison’s mother, Mrs Bowra and attempted to phone Mr Morrison’s lawyer who had been retained on the unlawful wounding charges. She was eventually able to speak to him about lunchtime and he gave the name of a lawyer who he said specialised in immigration matters. She was first able to speak with that lawyer at about 2.00 pm. She was advised by the lawyer at that stage that there was no need for concern as there was 48 hours within which to obtain an injunction and that she could apply for the injunction the following day. She then attempted to contact Mr Morrison by phone and on telephoning the Midland Police Station, at about 1.00 pm, she was told that there was no record of Mr Morrison being at the Station and to call back later. She was aware also that Mr Morrison’s mother was ringing and trying to make contact with him so she did not pursue further attempts.

65 By mid-afternoon Ms Roberts received a phone call from a female immigration officer to say that Mr Morrison had been offered the opportunity to telephone her but that he was too distressed to accept the offer. She says that she was later told by Mr Morrison that he had repeatedly begged to be allowed to make a phone call to her but his requests had been declined.

66 Shortly before 5.00 pm on 8 May 2007 she received a call from the same female immigration officer. She confirmed that Mr Morrison was ‘ok’, Ms Roberts said that she wanted to speak to him. About ten minutes later she received a call from Mr Morrison to say that he was at the airport and was being taken on board a plane to the United Kingdom which was due to leave very shortly. She asked him whether he had spoken to any lawyer and he said that he had not been allowed to as he had no rights. He said he had been locked up at Midland and he went straight from there to the airport and had not been permitted to speak to anybody. She then organised for urgent representation. As it transpires, the departure of the flight was delayed which enabled the urgent interim injunction application to be heard (but declined) by French J.

67 Ms Roberts says her children have suffered greatly as a result of Mr Morrison being removed from Australia. They cannot understand what has happened and how it is he could be taken from them. This evidence may readily be understood and I accept it.

68 Mr Morrison’s mother is Mrs Bowra. She is an Australian citizen and, of course, came to Australia in 1977 with her three children, namely, Mr Morrison and his two sisters. It was at 11.00 am on the morning of 8 May 2007, when she was babysitting one of her daughter’s sick children when she received a phone call from Ms Roberts concerning Mr Morrison. Ms Roberts was understandably very upset and explained that Mr Morrison had been attacked in the street by people whom she thought were police officers and that he had been tasered and pushed to the ground. Mrs Bowra said that she was in shock for a while and did not know what to do but they agreed to contact the counsel who was acting for Mr Morrison in the unlawful wounding charge.

69 In addition, Mrs Bowra telephoned the Midland Police Station to ask where her son was and was informed by the woman answering that she did not have any information and that she would put her through to another department. Again, another woman answered and explained that they had no information concerning an arrest of Mr Morrison. She telephoned several other WAPOL locations but without any helpful information at all being forthcoming. When she telephoned the Midland Police Station again later in the day after several other attempts to trace Mr Morrison, she was informed by a female person ‘happily and immediately’ that Mr Morrison had gone but she said that she did not know where.

70 From the foregoing description by the witnesses for Mr Morrison and by Mr Morrison himself, one can readily understand their alarm at the process which had been adopted and their suspicion and concern that the three of them were deliberately not informed of Mr Morrison’s impending and imminent departure from Perth on a flight which, as it transpires, had already been booked.

71 As observed by French J in Morrison [2007] FCA 723 at 23, if it were the case that the removal was effected precipitately in order to deprive the applicant of access to the Court then that may constitute a collateral purpose outside the proper exercise of the power to detain and remove. In short it would be a very serious matter. However, before it is possible to reach any conclusion on that possibility, it is necessary to examine the evidence on the other side of the ledger for the Minister.

72 Mr Richard Battersby is the Assistant Director of the New South Wales Section 501 Taskforce of DIAC. On about 3 May 2007 he was appointed the Escort Group Commander by Peter Richards, the Assistant Secretary of the Compliance Operations Branch of DIAC with overall responsibility for the removal of Mr Morrison to the United Kingdom once he had been located and taken into immigration detention by officers of WAPOL. On the same day, the Secretary of DIAC issued him with a search warrant and at approximately 9.40 am on 8 May 2007 WAPOL informed DIAC that Mr Morrison had been sighted in a vehicle. At about 10.00 am, WAPOL informed DIAC that Mr Morrison was in custody and that they were conveying him to the premises of 19 Tour Place, Middle Swan. On being advised of Mr Morrison’s custody by WAPOL he traveled from the office of DIAC in Perth to the 19 Tour Place address together with DIAC officers’ Ms Faith Fabbro and Mr Stephen Reynolds, both of whom also gave evidence. They arrived at that address at 10.50 am.

73 Mr Battersby and Mr Reynolds left the vehicle and he made arrangements with Ms Fabbro that he would call her on her mobile phone once they had completed their execution of the search warrant so that she could return to collect Mr Reynolds and Mr Battersby. At about 10.51 am he informed Mr Morrison that his visa had been cancelled by the Minister and that he was now in immigration detention. He served him with a Notice Of Visa Cancellation dated 28 February 2007 and a copy of the Minister’s Statement of Reasons for the decision of that date. I will come to these in more detail later.

74 Mr Morrison then asked Mr Battersby what was going to happen to him, Mr Battersby says he informed him that he would be conveyed to the Midland Police Station and from that location he might be transferred into the national detention centre network, either the Perth or Villawood Immigration Detention Centres or he would be removed from Australia as soon as practicable pursuant to the Act. He advised of matters dealing with his post-arrival care in the United Kingdom and all of the possible courses of action as he considered it was highly likely that Mr Morrison might seek an injunction preventing his removal from Australia. In other words, Mr Battersby’s evidence is that at this stage, at approximately 11.00 am on 8 May 2007 he was conscious that it was open to Mr Morrison to attempt to obtain an injunction and that he may have been able to obtain an injunction restraining DIAC or the Minister from removing Mr Morrison from the country.

75 Mr Battersby said that Mr Morrison requested his partner to pack his suit, heavy black jacket and warm clothing evidently, in an expectation that at some stage not too far removed, Mr Morrison would be in a cold climate. Mr Battersby says that he also asked at this stage if he wished to make a telephone call but Mr Morrison declined the offer.

76 Mr Battersby said he then proceeded to execute the search warrant at the premises and search for documentation to formerly identify Mr Morrison. Mr Morrison was then taken by WAPOL to the Midland Police Station. He arrived there at approximately 11.20 am. Mr Battersby traveled there separately in a vehicle driven by Ms Fabbro. At the Midland Police Station Mr Morrison was placed in an interview room. Mr Battersby said he again asked Mr Morrison if he wished to make a phone call but he again refused the offer.

77 At about 11.45 am, Mr Morrison was seen by a nurse in relation to the cut over his left eyebrow when he fell to the ground following his detention by WAPOL. Half an hour later, Mr Morrison was taken by WAPOL officers to the lockup area of the Midland Police Station. Mr Battersby said he waited outside the lockup area while the nurse conducted the fitness to fly assessment. She concluded her assessment, he says, at around 12.00 pm.

78 There was then a meeting and discussion between Mr Battersby and WAPOL officers concerning ongoing security arrangements for Mr Morrison for the next 45 minutes until approximately 1.00 pm. He says, that at this time he also discussed the ongoing operation with the national office of DIAC and that at all times he accompanied Mr Morrison when he was moved around the Midland Police Station. At 1.08 pm, he says he advised Mr Morrison that he was to be removed from Australia later that day and he served him with a removal notice. Mr Battersby says he also advised him that DIAC would look favourably at providing a removal/reuniting package for his family if he agreed. Mr Morrison, he says, agreed to allow consultation with his fiancée, Ms Roberts by DIAC and signed the removal notice which simply had the effect of acknowledging its receipt.

79 Mr Battersby says he then discussed with Mr Morrison the logistics of his removal and to where he wished to travel in the United Kingdom. Mr Morrison said he wanted to go to Glasgow, Scotland and to his father’s address in Irvine. Mr Battersby agreed that DIAC would provide accommodation for him in Glasgow and his travel to Irvine. Mr Battersby said Mr Morrison appeared to be pleased with these arrangements and said that he would be compliant during the removal process. Mr Battersby was not, he said, aware of any instruction being issued by any officer of DIAC to WAPOL that Mr Morrison was not to be allowed to make any phone calls. He says that he certainly provided no such instruction. He also denies that Mr Morrison made any request to him to be allowed to make a phone call to Ms Roberts or to his lawyer after Mr Battersby had informed him that he was to be removed and had served him with the removal notice. He also denies informing Mr Morrison that he now had no right to make any phone calls and that any legal rights in Australia had been foregone as he was now there illegally. He says that if Mr Morrison had asked him if he could make a phone call to Ms Roberts or to his lawyer he would have arranged for him to be able to make such calls.

80 At about 1.30 pm, Mr Battersby left Mr Morrison and organised for arrangements to be made for further travel to Glasgow and Irvine and for his accommodation in Glasgow. At the same time he briefed the national office of DIAC in relation to events and spoke with officers of WAPOL in relation to the custody transfer. He spoke to the AFP in relation to the custody transfer of Mr Morrison from WAPOL to the AFP on arrival by Mr Morrison at the Perth International Airport. He says he did not see Mr Morrison or give any further documentation to him to sign from the time he left him at approximately 1.30 pm until returning at approximately 3.20 pm and that at no time during the period after informing Mr Morrison that he was to be removed from Australia, until he left the Midland Police Station at about 3.32 pm did Mr Morrison make any request of Mr Battersby to make a phone call either to his fiancée or any legal representative.

81 At 3.20 pm Mr Battersby attended Mr Morrison in the holding cell and gave him a full briefing in relation to his removal and post-arrival care in the United Kingdom including accommodation and arrangements. He explained that he would be accompanied by an escort group consisting of eight AFP officers. Mr Morrison, he says, was placed into high risk security restraints by WAPOL prior to his departure from the holding cell. At about 3.32 pm, Mr Morrison was taken by WAPOL from Midland Police Station to the airport where he arrived at about 3.54 pm. Mr Battersby was in the same vehicle for that trip. Mr Morrison was transferred to an AFP vehicle which was stationed in the terminal tunnel and at about 4.40 pm he was again offered the use of a telephone which he accepted and he requested that his fiancée, Ms Roberts be called. Mr Battersby says he telephoned Ms Roberts following which Mr Morrison spoke to her for about four minutes until he terminated the call.

82 At about 4.48 pm, airport security attended and conducted pre-boarding checks of Mr Morrison and the escort group which in addition to the eight AFP officers included Mr Battersby and another DIAC officer, Mr Stephen Reynolds and the nurse, Ms Robyn Jones. At about 4.55 pm, Mr Morrison and the escort group were taken to the rear exit door of the Thai Airways plane on which Mr Morrison and the escort group were traveling to Bangkok. They boarded and Mr Battersby reminded Mr Morrison of the levels of behaviour required while he was in custody during the journey to the United Kingdom. \

83 As it transpired the departure of the flight was delayed due to a repair being performed. The flight left shortly after 6.43 pm and landed at Bangkok at 1.15 am on 9 May 2007. Mr Battersby confirms Mr Morrison’s account that Thai security advised that the flight captain of the Thai Airways flight to London would not approve the flight’s departure if Mr Morrison remained in restraints. However, Thai security also advised that if Mr Morrison became disruptive or threatened the security of the aircraft, the captain would consider the reapplication of the restraints. The restraints were removed. Prior to that, Mr Battersby advised Mr Morrison that any changes in his behaviour or any threats of harm to himself or others would not be tolerated and it would require the reapplication of the high risk restraints.

84 Following arrival in London, at 2.45 pm, Mr Morrison and the escort group were met by uniformed and plain clothed members of the United Kingdom Police service. Mr Battersby provided a brief and handover to a detective with the Violent Crime Directorate. That detective advised he would provide Mr Morrison with a contact number for Prisoners Abroad and brief them to establish a contact with Mr Morrison. The detective also confirmed that he would assist to ensure that Mr Morrison caught his flight to Glasgow and would inform the authorities in Glasgow of any possible self-harm issues.

85 In cross-examination, Mr Battersby conceded that DIAC had put in place a very expensive operation (including flying over ten officers with Mr Morrison and booking out the last six rows of an international flight). The intention was that they should fly out of Australia the same day that Mr Morrison was detained. But he also observed that DIAC had alternative arrangements in place if Mr Morrison’s health was such that he should not fly or an interim injunction restraining his removal had been granted.

86 There were differing views as to the point of time at which Mr Morrison should be specifically informed of his impending departure that day. This was an issue on which counsel for Mr Morrison placed some emphasis. It was suggested but denied that Mr Morrison had been deliberately misled on that issue.

87 Mr Battersby swore a further affidavit which was filed and served very shortly prior to the hearing and beyond the date for which directions had provided. The affidavit annexed a running sheet constituting running and contemporaneous notes of the events which took place. While I allowed the affidavit into evidence, subject to any further application that might be made as a result of prejudice it may cause, it is now clear that obviously Mr Morrison has not had an adequate opportunity to comment on the running sheet which constitutes some 13 pages. Some entries contain a reasonable amount of detailed information. In the circumstances I consider that the potential prejudice in relying upon the material in the running sheet is obvious and I do not propose relying on it in any way.

88 Mr Stephen Reynolds is presently the Manager of the Client Service Training Unit in DIAC at Melbourne. He was formerly the Assistant Manager of the Compliance Counter Operations in DIAC’s office in that city. His involvement in relation to Mr Morrison starts on Wednesday, 2 May 2007 when he was requested to assist with the removal of an unidentified, unlawful non-citizen from Perth to the United Kingdom. The following day he was appointed Deputy Escort Group Commander to assist Mr Battersby. His evidence was essentially corroborative of the evidence of Mr Battersby, albeit given in his own words and touching on the following additional evidence.

89 Mr Reynolds gave evidence of a discussion in his presence between Mr Battersby and Mr Trevor Evans, Officer-in-Charge of Midland Police. Mr Battersby stated that he had been instructed to tell Mr Morrison of his pending removal later that day. Mr Evans responded saying that it was the assessment of the police that Mr Morrison would become violent when told of his removal. Due to a two hour delay before Mr Morrison was due at the Perth International Airport, Mr Evans requested that DIAC delay advising Mr Morrison of his removal for the safety of police and for Mr Morrison himself. He had prepared some notes on that topic and produced the notes under an entry adjacent to the time 12.30 pm. Those notes read:

90 There was another discussion at 12.55 pm between Mr Battersby and Mr Evans regarding the service of the removal notice. On this occasion, Mr Evans told Mr Battersby that he would ask DIAC to remove Mr Morrison from the police station if he, Mr Morrison, was told of his removal at that stage. Mr Reynolds notes also confirm this discussion.

91 Finally, at 1.08 pm, Mr Reynolds attended the cell area with Mr Battersby and a number of police officers. Mr Battersby entered the cell area and Mr Reynolds remained at the door just outside the cell within hearing distance. Mr Battersby then advised Mr Morrison that he would be removed from Australia later that day and served him with the removal notice. He also advised him that DIAC would assist with a reuniting package for his family if he wished to have it. He then discussed the process of the removal with Mr Morrison. Mr Battersby asked Mr Morrison if he wanted to make a phone call, Mr Morrison said he did not want to make the phone call.

92 Ms Faith Fabbro, Acting Manager of the Removals Branch of DIAC, gave evidence that in instances where DIAC intends to locate an unlawful non-citizen, its usual practice is to first conduct observations on the premises for the purpose of risk assessment. This is conducted in order to assist DIAC to determine the appropriate number of officers that may be required to carry out an operation. WAPOL, with the assistance of its Tactical Response Group (TRG), was charged with the tasks of conducting the location and initial detention of Mr Morrison. She said that at about 4.00 pm she rang Ms Roberts at the request of Mr Battersby from DIAC’s office at the Perth International Airport. The purpose of the call was to inform Ms Roberts that Mr Morrison was being removed that afternoon to the United Kingdom. Ms Fabbro informed her that if she and the children were interested in relocating to the United Kingdom, she could make a request in writing to DIAC seeking assistance to relocate. She did not make a second call to Ms Roberts and there was no other female officer involved in the operation. She did, however, make two calls to Ms Roberts on 9 May 2007 following the removal of Mr Morrison. She had never spoken to Mrs Bowra or anyone else from Mr Morrison’s immediate family on 8 May 2007, apart from the phone conversation with Ms Roberts.

93 In the meantime during the period following the February decision of the Minister and the 8 May removal, WAPOL officers were also assisting. Detective Antonio, on 22 March 2007, at the direction of Detective Evans who was in charge of WAPOL side of the operation, prepared a report for internal purposes and for DIAC. It assessed Mr Morrison, for much the same reasons as other reports, as posing a high risk and on that basis Detective Evans engaged the assistance of the TRG to apprehend Mr Morrison. He confirmed that tasers were utilised without warning and that Mr Morrison received a gash above his eye when he fell to the ground. He said that the use of tasers in that manner is a standard method of apprehension utilised by the TRG in circumstances where the person to be apprehended is or has been assessed as posing a high risk to the safety of members of the community and/or officers involved in the apprehension.

94 Detective Evans also confirmed that he could recall that Mr Morrison was offered a phone call by one of DIAC’s officers when he was at the premises of Ms Roberts but that Mr Morrison having received that offer declined it. The memorandum prepared by Detective Antonio on which reliance was placed, was not admitted for the truth of its contents but simply as proof of the information received and on which there was reliance. In that report it is stated:

95 Detective Senior Constable Beverley also gave evidence as to the handling of Mr Morrison. He also rejected the evidence of Mr Morrison that on no occasion was any statement made to Mr Morrison to the effect that he was not allowed to make a phone call. Nor had he received any such instructions to that effect, nor was he aware of any such instruction being issued by any DIAC officers to any other police or TRG officers.

96 As explained, the arguments advanced for Mr Morrison essentially fall into two categories. Grounds 1(a), (b) and (c) of the application challenge the lawfulness of the decision to cancel Mr Morrison’s visas. Ground 2, however, challenges the lawfulness of the steps taken to remove Mr Morrison from Australia following the decision to cancel his visa. At the hearing, counsel for Mr Morrison did not pursue ground 1(b). It remains to consider the other two grounds in relation to the lawfulness of the decision to cancel Mr Morrison’s visa.

97 It was clear that there was no dispute that Mr Morrison, by reason of his extensive criminal record, was deemed to be not of good character within the test provided under s 501 of the Act. It follows that the Minister clearly had the power to cancel Mr Morrison’s visa.

98 The essential argument was that the power to cancel is a discretionary power and the discretion can only be exercised in accordance with law. There were two primary contentions in that regard.

99 The first was that the Minister had failed to take into account the interests of the children within his assessment of the expectations of the Australian community.

100 The second was that the Minister did not have before him the information of the pending charge before the District Court of Western Australia in respect of which it is said that Mr Morrison ‘sought to clear his name’.

101 The approach taken on the first point was that in the reasons of the Minister, he recorded that he gave three matters primary consideration and divided those into the headings of ‘Protection of the Australian Community’, ‘Expectations of the Australian Community’ and ‘Best Interests of the Child’. The Minister specifically noted that he placed ‘great weight’ on his belief that the Australian community would expect Mr Morrison’s visa to be cancelled and for him to be removed. Indeed on his reasons, that was a matter to which he gave greatest emphasis. Other factors were referred to as having considerable, moderate or little weight.

102 However, in reaching this belief as to the expectations of the Australian community, it is said that the Minister acted without any evidence or without any consideration of the diversity of views of the Australian community. Secondly and in particular, it is said that the Minister did not take into account that many, if not most, would think that it was wrong to remove a long-term resident who had committed a very serious offence as long ago as 17 years but had been allowed to remain in Australia ever since that time and who in the last six years had become a family man with three young children under the age of 5 years for whom he cared and supported. At the same time it is said, that during that period, there was only one conviction in respect of which he received a sentence of six months imprisonment.

103 It is said that while the Minister recognised that the cancellation and removal from Australia would cause significant hardship to Mr Morrison’s children, he failed to take into account that this was a factor which would inevitably affect the expectations of the Australian community. The greatest emphasis in this argument was on the interests of the children.

104 ‘The Expectations of the Australian Community’, as observed by French J in Preston v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCA 107 at [23] that term which is used in Ministerial Direction No.21 ‘... invites a judgement akin to judgments about the "public interest" which is necessarily evaluative and conclusionary in character and not amenable to challenge or judicial review on its merits’.

105 Similarly the Full Court in M238 of 2002 v The Honourable Phillip Ruddock, Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 260 at [59] said:

106 As the Full Court observes, the nature of the assessment being of a political evaluation, the range of resources to which reference may be had in order to exercise the discretion is not only wide but may well exceed the precise material contained in the submissions before the Minister or in the reasons expressed by the Minister for arriving at that decision.

107 I consider there is a further difficulty with the argument advanced for Mr Morrison on this topic. Although it is true that in the Minister’s decision, the interests of the children were recorded under a separate category or heading which immediately followed the category headed ‘The Expectation of the Australian Community’, it is unrealistic, in my view, to suggest that the Minister totally divorced his mind from the interests of the children when considering the expectations of the Australian community. Indeed, that the Minister turned his mind to interests of at least some of the children is evident on the terms of the passage headed ‘Expectations of the Australian Community’. It is impossible to say, in my view, that the Minister did not take into account this topic. Equally it would be very difficult to conclude that by considering it in a separate category as suggested for Mr Morrison, he had erred in the exercise of his discretion in a way which was susceptible of judicial review.

108 It seems to me that in the absence of clear error demonstrable from the face of the record, what Mr Morrison is, in substance, challenging by virtue of these grounds is the merits of the Minister’s decision. Such a challenge is clearly not open.

109 In Pull v Minister for Immigration and Multicultural and Indigenous Affairs [2007] FCA 20 at [42] a similar claim was made. The applicant in Pull considered that the Tribunal (the Administrative Appeals Tribunal) had not given genuine and proper consideration to the expectations of the Australian community because the Tribunal member did not refer to certain matters including that the applicant had ‘two daughters who are Australian citizens and there is no evidence to suggest that they will ever be able to renew their relationship with the applicant’. At the time that those proceedings were commenced, s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) did not (by reason of s 483 of the Act) apply to a privative clause decision. Therefore, it followed that to succeed the applicant was required to show that the Tribunal committed a jurisdictional error. As observed by Besanko J at [43]:

110 Similarly, in the present situation there is no doubt that the Minister was aware and recorded the fact that Mr Morrison had children and stepchildren and in considering the matter of the best interests of the children he recorded that the children would suffer hardship relating to the loss of a father figure and that his removal from Australia would cause hardship to the children. He recorded that it would possibly be difficult for Mr Morrison’s family to cope financially and for Ms Roberts to cope with six children. As in the case of Pull [2007] FCA 20 (in relation to the Tribunal), the Minister clearly took into account the hardship relating to Mr Morrison’s children and clearly gave genuine consideration to that issue.

111 Ground 1(b), if not expressly abandoned was certainly not pursued at the hearing. As I perceived it, Mr Morrison appeared to acknowledge through counsel that as in the case of M238 of 2002 [2003] FCAFC 260 at [59] and as had also occurred in Pull [2007] FCA 20, while the Minister did not have specific evidence before him as to the expectations of the Australian community in relation to the factors outlined in these grounds, nevertheless, the Minister formed his own evaluative judgement as he was entitled to do. It was not necessary for the Minister to make specific reference to every item which Mr Morrison would wish the Minister to record. Further, it does appear to me in substance again that this is an attack on the merits of the decision rather than a ground of judicial review.

112 Ground 1(c) was certainly advanced seriously at the hearing. But in my view it was also without foundation. I would accept that ground 1(c) on its face did appear to set up a better basis for judicial review as distinct from merits review but the suggestion that the Minister should have had regard to the fact that Mr Morrison was facing serious criminal charges in the District Court of Western Australia is in itself unsustainable. It is common ground that Mr Morrison was facing further serious charges. It is also common ground that this factor was not put before the Minister and so the Minister was unable and, therefore, did not take it into account in reaching his conclusion. Where the argument breaks down, in my view, is the suggestion that such material should necessarily have been put before the Minister. The argument for Mr Morrison is that he was so keen on ‘clearing his name’ that the decision would have had to have been deferred so that Mr Morrison could have had the opportunity to ‘clear his name’ in relation to those charges.

113 Mr Morrison says that the charge of ‘doing grievous bodily harm with intent’ is said to have been based on an allegation that he shot a man in the leg on 17 March 2005. He says he had nothing to do with that alleged offence and has no knowledge of its circumstances. He has pleaded not guilty to the charge and when the charges eventually come to trial, (if they do) he says he fully expects to be completely cleared. In relation to the unlawful wounding charge, he had been remanded in custody but was eventually granted bail in December 2005. As a condition of the bail, he was required to attend at the Midland Police Station at specified times with which he fully complied (Midland is a suburb of the Perth metropolitan area). He says he regularly attended the Midland Police Station without any incident. The requirement to so attend as a condition of the bail was removed, he says, from early to mid-2006. His fiancée, Ms Roberts, was surety for his compliance with the bail conditions. He says that he was aware that any breach of his bail could put her house at risk.

114 In addition, he has attended a number of preliminary hearings at the District Court in Perth, Western Australia ‘without fail and again without incident’. The trial was due to commence in November 2006. It did not proceed on that date and he next attended the District Court on 27 February 2007 when the matter was re-listed in order to proceed in August 2007. He contends that the charges were brought ‘because of the attitude and prejudices of the Western Australian police against me’. He said it was very important to him that he had the opportunity to face the charges and to clear his name.

115 It is said that it was not only in the interests of Mr Morrison but also in the interests of the Australian community and of justice generally that those criminal proceedings be resolved and Mr Morrison be given the opportunity to clear his name. It was also pointed out that following the removal of Mr Morrison from Australia the criminal proceedings have been discontinued, albeit that Mr Morrison could be charged once again should he be returned to Australia as a result of these proceedings.

116 The argument for Mr Morrison attempts to rely on the decision of Lu v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 340; (2004) 141 FCR 346 per Black CJ at [7] and [8] and Sackville J at [56]. In that case their Honours accepted that the failure to accurately consider Mr Lu’s criminal record amounted to jurisdictional error even though the offences which were misstated in the report to the Minister were in the submission for Mr Morrison, relatively minor. The argument for Mr Morrison acknowledges the distinction between misstating a criminal record and failing to include while referring to it, the fact that the record holder is currently facing additional serious charges. But it is submitted for Mr Morrison that it is equally relevant for the decision-maker to be aware of that fact.

117 In my view the two factual scenarios are quite distinguishable. An erroneous statement about the appellant’s criminal record in Lu [2004] FCAFC 340; 141 FCR 346 meant that the information before the Minister and provided to him for the purpose of exercising his discretion was wrong in a material respect. It followed that there was jurisdictional error by the Minister in failing to take into account (as the Minister was unable to do so) an accurate statement of the person’s criminal record. As the Chief Justice said at [8]:

118 His Honour went on to say that the nature of the sentence was at the heart of the definition.

119 The fact that Mr Morrison was facing further charges on a serious offence, did not pertain to established sentences for conviction. Indeed, given the presumption of innocence, there might have been complaints if the existence of the charges on the serious offence had been put before the Minister for him to take into account in the exercise of his discretion. Further, although Mr Morrison contends that in Lu [2004] FCAFC 340; 141 FCR 346 the misstatements about the criminal record were relatively minor, that was not the view of Sackville J who said at [58] ‘The information in the Issues Paper concerning the appellant's 1993 and 1997 convictions was inaccurate in two major respects’ (emphasis added). Indeed, his Honour earlier observed at [56] that it may be that a minor error relating to convictions or sentences imposed on a visa holder would not in substance result in the Minister failing in a relevant sense to take account of a person’s criminal record.

120 I turn then to ground 2 which does not relate to the decision itself but to the conduct involved in detaining and removing Mr Morrison from Australia. Clearly most of the evidence which I have canvassed above and which was adduced at the hearing related to this issue. Mr Morrison pressed the serious submission that he was deliberately deprived of information as to DIAC’s intentions to immediately deport him and that he was refused use of a telephone by which he might challenge that action through the Court. It was suggested that the express purpose of so depriving Mr Morrison was to preclude his opportunity to seek meaningful legal advice or representation to restrain his deportation.

121 Counsel for Mr Morrison submitted that the act of detention which was carried out by WAPOL (at the request and knowledge of DIAC and the Minister) was violent and unlawful. Mr Morrison had committed no offences immediately prior to his detention, he was not avoiding being detained and had not even been informed that a decision had been made to cancel his visa. It is contended that in those circumstances there was no basis at law for undertaking a violent arrest without warning. It was submitted that unlawful arrest and consequent false imprisonment was a very serious matter. I accept this is so. Indeed the seriousness of this allegation is to be borne in mind when considering whether the onus of establishing it has been discharged. The seriousness pertains not only to the false imprisonment allegation but also to the alleged intention to preclude the effective possibility of any intervention by the Court.

122 The Minister accepted that the nature of the detention was violent but stressed that there was so much information made available to DIAC to stress the high risk involved in detaining Mr Morrison due to his violent criminal record and propensities that the measures taken in the circumstances and which accord with standard procedure for WAPOL and the TRG, were justified.

123 It is not surprising that Mr Morrison and his family were shocked and astounded by the events which occurred. Mr Morrison and his family strongly dispute much of the factual basis upon which the Minister and DIAC relied as to Mr Morrison’s tendencies and propensities. Further, the considerable violence of the initial detention coupled with the fact that Mr Morrison was effectively removed from the country before there was any real opportunity for that removal to be meaningfully challenged in Court, would quite reasonably lead Mr Morrison and his family to suspicion. The concern is whether the way in which he, in particular, was dealt with (in departure from the usual practice of permitting a 48 hour opportunity for challenge) was deliberately intended to deprive him of the opportunity for judicial review.

124 As against that it has now become known that there was a very substantial amount of official material in the hands of DIAC which rated Mr Morrison as a very high security risk. The Minister and DIAC make it clear that it was because of that information and the source from which it came that Mr Morrison was treated as being very dangerous.

125 Where there is a sharp disparity between the evidence Mr Morrison and the evidence of the various officers called for the Minister and DIAC is in relation to whether or not Mr Morrison was permitted the opportunity to make phone calls.

126 On that topic, I prefer the evidence of the officers. When Mr Morrison was cross-examined by telephone in the United Kingdom he stressed that after having been shot with the taser he remained ‘stunned for most of the day, confused, dazed’. I also take into account the fact that it was very early in the morning in the United Kingdom when he gave his evidence. Nevertheless and perhaps understandably given the totality of the circumstances, his responses were at times somewhat aggressive and belligerent. However, one thing he was candid about, in particular, was that he could not recall everything that occurred in the early part of the day. He attributed this to being dazed and stunned and the fall to the road and the cut to the head. The cumulative effect of these events could most certainly cause the physical and mental reaction which Mr Morrison describes. Mr Morrison also points to the fact that there was no need, as he understood it, to use a telephone earlier in the day as he anticipated that he would be remaining in detention in Perth for some time. In either event, it appears to me that little turns on the point because by 1.08 pm the intentions of DIAC and the Minister had certainly been made clear to Mr Morrison. The officers were cross-examined strenuously on the topic. None of them was present in Court while others gave evidence. Counsel for Mr Morrison effectively put to them quite appropriately differences between their respective statements. While there were reasonably minor differences in the statements, the differences, in my view, were more consistent with the statements having been independently and individually prepared rather than in some collaborative or collusive effort.

127 There are two other factors which lead me to conclude that deliberately or otherwise depriving Mr Morrison of telephone use would have been very unlikely. The first is that it is clear that at about 1.08 pm Mr Morrison was offered the use of a telephone and at that stage he had expressly been told that he was to board the plane later that day headed for the United Kingdom. It is not unknown for injunctions to be sought when a person in Mr Morrison’s position is actually already at the airport. In either case, the Minister and DIAC were well aware that the Court remains available (by telephone call) to urgently hear an application for an interim injunction in such circumstances. Indeed, that is what occurred in this case albeit it is said that this was due to a delay in the departure of the aircraft. Moreover, DIAC and the Minister had already prepared the day before an affidavit which explained the circumstances giving rise to the actions taken by the Minister. This clearly was in anticipation that there would be an application for injunctive relief. The preparation of such an affidavit would be redundant if Mr Morrison was to be dealt with in such a way that it would be impossible for him to contact a legal advisor to pursue an application for injunctive relief.

128 It remains necessary to examine whether those facts give rise to any contravention or departure from requirements under the Act. There appears to be no requirement under the Act that the person whose visa has been cancelled be given notice of that cancellation prior to the person being taken into immigration detention. In the circumstances of this case on the basis of information received from WAPOL and others, the strategic view was taken that Mr Morrison should not be so informed until he was securely in custody because of the high risk that he was believed to pose.

129 Once it was clear that Mr Morrison’s visa had been cancelled, the officers involved having reasonable grounds to suspect that he was an unlawful non-citizen were actually required in any event to detain Mr Morrison pursuant to s 189 of the Act (Ruddock v Taylor (2005) 222 CLR 612 per Gleeson CJ, Gummow, Hayne and Heydon JJ at [31]).

130 There is in my view a distinction between the detention of Mr Morrison and arrest in the circumstances of the cases relied upon by Mr Morrison (R v Ul-Haque (2007) NSWSC 1251 and State of New South Wales v Riley [2003] NSWCA 208; (2003) 57 NSWLR 496). Those cases concerned the absence of arrest warrants before the arrests were effected. In the current situation, which is actually a detention rather than an arrest, there was a statutory obligation for officers to pursue the detention. Mr Morrison’s detention was lawful and did not lead to false imprisonment: Ruddock (2005) 222 CLR at [31]. I do not accept that Mr Morrison was denied his rights under s 256 of the Act.

I certify that the preceding one hundred and thirty one (131) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice McKerracher.

Counsel for the Applicant:	H Christie

Counsel for the Respondent:	P Corbould

Solicitor for the Respondent:	Australian Government Solicitor

Date of Hearing:	19 December 2007

Date of Judgment:	8 February 2008

Federal Court of Australia

Morrison v Minister for Immigration and Citizenship (includes Corrigendum dated 11 February 2008) [2008] FCA 54 (8 February 2008)