Wigney J politely offers a suite of condemnations of the Minister's disregard for tribunals, courts and the law. His Honour states
[57] The conduct of the Minister in this case, on just about any view, has been disgraceful. Putting aside the fact that PDWL remains in detention, despite having been granted a visa on 11 March 2020, that is, six days prior to the hearing of these applications, the Minister appears to have willingly and flagrantly failed to comply with the orders made by Perry J on 12 March 2020.
[58] Putting aside the Minister’s undoubted ability to waive any privilege if he wished to do so, I have little doubt that an explanation could have been given for the continuing detention of PDWL which did not involve the disclosure of any privileged information. The reasons for the continuing detention could have been explained by an officer who was not a solicitor and the explanation could undoubtedly have been given without exposing any legal advice that may have supported that explanation. It may perhaps be inferred that the only explanation that the Minister had for the continuing detention of PDWL was that he, or someone in his Department, thought that the Tribunal’s decision was wrong. It would appear, however, that either no officer in the Minister’s Department was prepared to depose to that fact, or the Minister was simply prepared to ignore the clear terms of Perry J’s order.
[62] The Minister sought to characterise PDWL’s application for a writ in the nature of habeas corpus as an application “in relation to a migration decision”. That was said to be because some hypothetical officer somewhere in the Commonwealth must have made a decision to detain the first respondent under subs 189(1) of the Migration Act. The Minister did not adduce any evidence that any officer had in fact turned his or her mind to subs 189(1) of the Act at any time after the Tribunal’s decision, or that any officer had in fact made a decision under subs 189(1) of the Act. One wonders why, if there was in fact such an officer, he or she did not swear an affidavit in compliance with the orders made by Perry J on 12 March 2020.
[63] In any event, the Minister’s characterisation of PDWL’s application for habeas corpus as being a review of a hypothetical decision by the hypothetical officer to detain PDWL under subs 189(1) of the Migration Act has no merit and is rejected. ...
[77] The Minister’s contention that the Court does not have jurisdiction to entertain PDWL’s application has no merit and is rejected. That is so whether it be considered to be an application for a writ of habeas corpus, an action in the nature of habeas corpus, an action for injunctive relief against an officer of the Commonwealth, or an action in respect of a matter arising under the Migration Act. Either way, the Court has jurisdiction to entertain such an application under s 39B of the Judiciary Act and power to make an order releasing a person from detention under s 23 of the Federal Court Act. The Court’s jurisdiction to entertain such an action is not affected in any way by s 476A of the Migration Act because it is not an action in relation to a migration decision.
[82] First, the Tribunal’s decision is not a nullity until the Court sets it aside and declares that it is a nullity. It may, of course, be readily accepted that if that occurs, the decision is then treated as having been a nullity at all times; that is, it is treated as if the decision was never made: cf. Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597 at 612-613, 618, 643-647. That may no doubt have other implications. But it does not mean that the Tribunal’s decision can reasonably be considered to be a nullity by some hypothetical officer of the Minister’s Department simply because he or she thinks that the Court might eventually, or even will eventually, declare it to be so.
[83] The decision has not yet been set aside or declared by the Court to be a nullity. While the Minister may have reasonable arguments as to why the Court should, at some stage in the future, declare it to be a nullity, that has not yet occurred. The Minister, or officers in his Department, cannot simply ignore, or decide to give no effect to, a decision of the Tribunal simply because they do like it or believe it is wrong.
