Scott Morrison faces pressure to sack Alan Tudge after scathing Federal Court decision

The Prime Minister faces a tough call after a court found a frontbench minister’s treatment of a refugee amounted to “criminal conduct”.

Prime Minister Scott Morrison is under pressure to sack a senior minister after the Federal Court found he had engaged in unlawful conduct to keep a refugee imprisoned in a manner “which can only be described as criminal”.

The case centres on the Morrison Government’s refusal to grant a protection visa to an Afghan man found to be a refugee and release him from detention after his visa was refused.

The man arrived as an asylum seeker on a boat in 2012 but he was charged and convicted in 2018 of assaulting a friend during a drunken fight over a mobile phone and his visa was subsequently refused on character grounds.

The decision to refuse the visa was made by Liberal frontbencher Alan Tudge just five days after he became acting Immigration Minister when the current minister David Coleman was on extended leave for personal reasons that have never been explained.

RELATED: Latest coronavirus updates

Mr Tudge’s spokesperson said the minister is considering an appeal. Picture: David Gray/Getty Images

The asylum seeker, a 34-year-old citizen referred to as PDWL in the case, was then put back into immigration detention where he remained until he was released this year after several legal challenges and an appeal.

In the interim, the Administrative Appeals Tribunal found he was no risk to the community and should be released, but Mr Tudge refused to do so, instead appealing the decision.

In a scathing judgment, Justice Geoffrey Flick said Mr Tudge’s decision to keep the man in detention and deprive him of his liberty after a tribunal awarded him a visa was “disgraceful”.

“The minister cannot place himself above the law and, at the same time, necessarily expect that this court will grant discretionary relief,’’ the judgement states.

“The minister has acted unlawfully. His actions have unlawfully deprived a person of his liberty. 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. He has intentionally and without lawful authority been responsible for depriving a person of his liberty. Whether or not further proceedings are to be instituted is not a matter of present concern. The duty judge in the present proceeding was quite correct to describe the minister’s conduct as “disgraceful”.

Morrison is facing pressure to sack Mr Tudge after the court’s scathing decision. Picture: NCA NewsWire/Joel Carrett

The refugee is now living in the community without a visa because it was cancelled on character grounds.

During a separate legal challenge to release the man in March, 2020, the presiding judge observed:

“The conduct of the minister in this case, on just about any view, has been disgraceful,’’ he said.

“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.

“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.”

Labor’s legal affairs spokesman Mark Dreyfus said that if Mr Tudge had engaged in “conduct which can only be described as criminal”, he should resign.

“The Federal Court of Australia says Scott Morrison’s Immigration Minister “acted unlawfully in conduct which can only be described as criminal”, Mr Dreyfus said.

“Are you going to sack him, Mr Morrison, or is engaging in criminal conduct consistent with your ministerial standards?”

But a spokeswoman for Mr Tudge said he was considering options for a legal appeal.

“The minister strongly rejects any suggestion of improper conduct in these proceedings,’’ she said.

“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.”