The Rule of Law in Australia aids Qi Guang Guo

Michael Inman & Steven Trask, Canberra Times, 5 March 2018 where the title is Älleged Triad boss Qi Guang Guo wins $35,001 for unlawful detention””

The Australian government has been ordered to pay $35,001 to the alleged head of a Sydney-based Triad crime gang, know as the “Big Circle”, after he was wrongly locked up in immigration detention. It is the second time Qi Guang Guo, 60, has been compensated by the Commonwealth for wrongful imprisonment after he won $100,000 when he was illegally detained for 132 days between 2004 and 2005.

However, the win has not saved Mr Guo from plans to deport him to his native China after his visa was cancelled on the grounds he was not of good character. Mr Guo has been fighting a running battle with the authorities about his right to stay in Australia ever since his application for a permanent entry visa was denied in 1996 on the grounds police intelligence indicated he was involved in organised crime.

A series of departmental blunders, however, meant Mr Guo managed to avoid deportation for 21 years. During the two-decade delay, Mr Guo allegedly rose to the top of the Big Circle Gang, one of Sydney’s most influential crime syndicates. The gang is an offshoot of the Triads, a notorious crime network originating in China.

The assessment said the faction operated mainly in Sydney but had connections to other Australian cities and Asia.

Mr Guo arrived in Australia in 1988 on a six-month student visa and has since racked-up convictions for illegal gambling, using a false passport, housing stolen goods, and drug use.

Immigration officials were told of his alleged involvement with organised crime in 1996, with intelligence provided by state and federal police strongly recommending the visa application be declined.

An internal Immigration Department briefing from 1996 found that if Mr Guo was allowed to “remain in Australia he would be likely to engage in criminal conduct”.

The visa application was declined on the basis of the police intelligence, however, a legal “defect” in the notification letter rendered the decision invalid.

As a result, Mr Guo was illegally detained at the Villawood Immigration Detention Centre in 2004-05 and later compensated $100,000 for wrongful imprisonment.

It took until 2014 before a second letter was sent to fix the mistake, but that notice was also found “legally deficient”.

It is understood the letters failed mandatory requirements to inform Mr Guo of his right to have the decision reviewed.

Mr Guo was then twice held in immigration detention for a total of 1033 days, between February 2012 and September 2014 and December 2014 to March 2015.

Only in March 2015 was Mr Guo presented with a third letter that carried legal standing.

He challenged the decision in the Administrative Appeals Tribunal, which, in a decision published in May last year, confirmed Mr Guo’s visa should be cancelled on grounds he was not of “good character”.

Meanwhile, Mr Guo sued the Commonwealth in the Federal Court for damages for false imprisonment for the 1033 days he spent in detention in between 2012 and 2015.

In the case, before Justice Jayne Jagot, the Commonwealth admitted it had falsely detained Mr Guo, as it wrongly believed his temporary entry permit had ceased so that he was an unlawful non-citizen.

However, the Commonwealth argued it was not liable as it could prove lawful justification for its officers’ actions, and that, if it was liable, Mr Guo had not suffered loss or damage as a result.

Justice Jagot found the government had falsely imprisoned Mr Guo for the first 1032 days, but only ordered he receive $1 in compensation.

“… If the Commonwealth had not falsely imprisoned Mr Guo it would have lawfully imprisoned Mr Guo for the entirety of the period for which he was unlawfully detained and in precisely the same circumstances,” the judge wrote.

“As a result, only nominal damages are recoverable.”

The judge found Mr Guo’s imprisonment for one night – between the evening of March 5 and the afternoon of March 6 – had been unlawful as department staff had known he should be released.

Justice Jagot found the Commonwealth’s officers had “knowingly and in conscious disregard of Mr Guo’s rights, [chosen] expediency for the department above the rule of law and the right of the individual to be imprisoned only with lawful justification”.

The judge said the choice had been “reprehensible” and damages should be awarded to Mr Guo to both punish and deter wrongful imprisonment by authorities.

“It is of the utmost importance that those in positions of such power always choose the law over expediency; to make the choice of expediency when the liberty of an individual is at stake must not be permitted,” Justice Jagot wrote.

“Even in the case of a person such as Mr Guo, who garners little personal sympathy given his choices in life and patterns of anti-social and criminal conduct by which he squandered the opportunity to make a positive contribution to Australian society, the rule of law must remain paramount.

“I have decided that Mr Guo was falsely imprisoned by the Commonwealth but that he is entitled to only nominal damages apart from in respect of one period (the evening of 5 March 2015 to the afternoon of 6 March 2015) where exemplary damages in the sum of $35,000 should be ordered.”

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