A judge has found that a former bikie club member was put in immigration detention unlawfully for almost two years but has only compensated him for 20 minutes of his time in custody.
The judgement in favour of Adelaide man Paul Burgess, 36, was handed down in the Federal Court yesterday.
Mr Burgess came to Australia from the United Kingdom as a two-year-old.
The Federal Government first stripped him of permanent residency and detained him in June 2016, as part of a nationwide push to deport serious criminals who did not hold citizenship.
The revocation was initially based on his two-month membership of the Comanchero Motorcycle Club in 2013.
Mr Burgess was convicted of robbery and common assault in 2003 and was sentenced to 15 months in prison.
Justice Anthony Besanko found Mr Burgess deserved to be detained for 615 days in two separate stints between June 2016 and September 2018 but he was put in detention — in Western Australia and Christmas Island — under the wrong section of the Migration Act.
Despite the mistake, Justice Besanko found “he could and would have been detained in any event” under the Federal Government’s policy to deport serious criminals.
He was only awarded $1 compensation for his 615 days in detention but $15,000 for 20 minutes on September 16, 2016, when he was meant to be released on an appeal but never left Perth’s Yongah Hill detention centre.
It only took then-immigration minister Peter Dutton that short time to decide to cancel Mr Burgess’s visa again and put him officially back in detention on grounds including a conviction for driving dangerously.
Detainee’s rights not considered
Despite Mr Burgess’s release being anticipated on September 16, 2016, Justice Besanko said “no arrangements were made” for his release from detention and “no contact was made” with the Yongah Hill centre once the court orders were made “because he was not going to be released pending a second decision by the minister”.
“The applicant had a right to be released,” Justice Besanko wrote.
“… The respondent (the Commonwealth) intentionally, or at least recklessly, acted in disregard of the applicant’s rights.”
Mr Burgess’s lawyer, Mitch Simmons, said compensation was not the goal of the lawsuit, but to show that the immigration department had a policy of being slow to release detainees who won appeals but quick to follow ministers’ decisions, such as to cancel visas.
Justice Besanko said: “There is no evidence of such a policy in this case.”
Still, Mr Simmons counted it as a win.
“The department never took any steps to release Paul Burgess and instead put in place a lot of steps to keep him detained and disregarded his right to be released,” Mr Simmons said.
“The damages were never the key focus,” he added.
“It was how these people are treated and the correct interpretation of the act.”
He said he hoped the decision would change how the department treated detainees.
Mr Burgess still in detention
Acting Immigration Minister Alan Tudge has been contacted for comment.
He has the right to appeal the decision.
He is currently in a Victorian immigration detention centre seeking ministerial intervention to be allowed to stay in Australia with his fiancee and his son.
He was refused special leave to appeal to the High Court.