Federal Court of Australia

BVZ21 v Commonwealth of Australia [2022] FCAFC 122

ORDERS

THE COURT ORDERS THAT:

1.    The notice of appeal be dismissed.

2.    The appellant is to pay the respondent’s costs, as agreed or taxed.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

THE COURT:

Introduction

1    This is an appeal from a decision of the primary judge answering two separate questions stated pursuant to r 30.01 of the Federal Court Rules 2011 (Cth) (Rules).

2    The questions were as follows:

(a)    Has the applicant’s detention by the respondent at any given time since 19 June 2016 been unlawful?

(b)    Is the applicant entitled to release from detention by way of an order in the nature of a writ of habeas corpus?

3    The primary judge’s answer to both questions was “No”.

4    The appellant was unrepresented both before the primary judge and on appeal.

5    The appellant relied on four grounds of appeal. She contended that the decision of the primary judge:

(a)    “is legally unreasonable and doesn’t apply the Migration Act, the Public Service Act, the Legislation Act, the Constitution Act and the Acts Interpretation Act, or the other legislative instruments that apply to these proceedings, it has also failed to apply the international law that applies to a protection visa application” (Ground 1);

(b)    “has failed to make the best interests of a minor child in Australia a primary consideration as required under statutory legislation and international law that Australia is signatory to, the Convention on the Rights of the Child” (Ground 2);

(c)    “is an illogical and irrational judgement” (Ground 3); and

(d)    “[is] an unlawful judgement” (Ground 4).

6    For the reasons that follow, we have concluded that each of the grounds relied upon by the appellant was misconceived and to the extent that the grounds might best be construed as allegations that the primary judge was wrong in law, the answers given by the primary judge were correct and the appeal should be dismissed with costs.

7    As is readily apparent from the summary below of the appellant’s procedural history, the appellant has sought but ultimately been unsuccessful in her efforts to obtain a protection visa and has remained in immigration detention since 2015. The appellant is understandably frustrated. She is also concerned about her health given her ongoing medical conditions, as well as the well-being of her nine year old son who was born in Australia. These proceedings, however, are concerned only with the legality of her ongoing detention and the availability of any writ of habeas corpus.

Preliminary matters

Notice of discontinuance

8    We note as a preliminary matter that the appellant has filed, on 20 December 2021, a signed notice of discontinuance dated 17 December 2021 purporting to discontinue the whole of the proceedings below. No objection to competency is made by the respondent. The respondent accepts that the appeal is not moot nor hypothetical because the primary judge has given a judgment, answered questions and made orders, albeit interlocutory, that affect the appellant’s rights. Those orders will continue to have effect, notwithstanding any discontinuance of the proceedings below: State of New South Wales v Kable (2013) 252 CLR 118; [2013] HCA 26 at [32] (French CJ, Hayne, Crennan, Kiefel, Bell and Keane JJ).

Application to rely on further affidavit

9    At the commencement of the hearing of the appeal, the appellant sought to rely on an affidavit that she had sworn on 4 May 2022. Her application was opposed by the respondent. We heard submissions from the appellant as to why she should be permitted to rely on the affidavit and informed her that we would deal with the question of whether the affidavit should be received in our reasons for judgment.

10    The appellant’s 4 May 2022 affidavit was directed at the alleged failure of a case officer of the Department of Immigration and Border Protection (Department) to fulfil her duties under s 198(1) of the Migration Act 1958 (Cth) (Migration Act) to give the appellant’s case to the removals unit of the Department in June 2016, which had prevented her from being able to obtain the necessary transport in order to travel to the airport to board a flight to depart from Australia on 19 June 2016. The appellant annexed to her affidavit copies of emails that she had sent and received concerning her requests to be released from immigration detention, including emails that she had received from the Department’s case officer who she alleged had failed to fulfil her duties under s 198(1).

11    The appellant submitted that her 4 May 2022 affidavit was relevant to the appeal because in answering the two separate questions the primary judge had overlooked that the Department’s case officer was required under s 198(1) of the Migration Act to facilitate her removal from Australia.

12    The Court has the power to admit fresh affidavit evidence on an appeal pursuant to s 27(a) of the Federal Court of Australia Act 1976 (Cth). The power to admit further evidence is remedial and its primary purpose is to ensure that proceedings do not miscarry. In exercising the discretion, the Court will normally need to be satisfied that the further evidence, had it been adduced at trial, would very probably have meant that the result would have been different, and further that the party seeking to adduce the evidence was, at trial, unaware of the evidence and could not have been, with reasonable diligence, made aware of the evidence: Northern Land Council v Quall (No 3) [2021] FCAFC 2 at [15]-[16] (Griffiths, Mortimer and White JJ).

13    For the reasons that follow, any failure of the Department’s case officer to facilitate the removal of the appellant in June 2016 is not relevant to a determination of the two separate questions. It must follow that, had it been adduced at trial, the evidence could not have made any difference to the result. Further, the appellant has not provided any explanation as to why the evidence was not adduced at trial. We therefore have concluded that the appellant should not be granted leave to rely on her 4 May 2022 affidavit and it will not be received on the appeal.

Procedural history

14    The following procedural history is principally taken from the decision of Mortimer J in CPJ16 v Minister for Home Affairs [2020] FCA 1408.

15    The appellant is a citizen of New Zealand.

16    The appellant first entered Australia in 2009 on a false passport.

17    In 2010, a delegate of the Minister cancelled her visa when it became apparent that she had entered Australia on a false passport and she was taken into immigration detention. She escaped from immigration detention several days later and lived in the community until she was located in 2015. She was then taken back into immigration detention.

18    On 21 September 2015, the appellant applied for a protection visa on the basis that her ex-partner in New Zealand had put out a contract for her to be killed because she had betrayed him to the police. She claimed she had not reported it to the police because it might confirm her ex-partner’s belief that she was a police informant and, in any event, the police would not be able to protect her.

19    On 16 December 2015, the appellant’s application for a protection visa was refused by a delegate of the Minister. The appellant applied for a review of the delegate’s decision.

20    On 4 August 2016, the Administrative Appeals Tribunal (Tribunal) affirmed the delegate’s decision.

21    On 14 June 2017, the Federal Circuit Court (as it then was) ordered, by consent, that the delegate’s decision be set aside and remitted the appellant’s visa application to the Tribunal.

22    On 18 December 2017, a differently constituted Tribunal set aside the delegate’s decision and remitted the appellant’s visa application for reconsideration by a delegate of the Minister with a direction that the appellant satisfied s 36(2)(aa) of the Migration Act on the basis that the appellant’s ex-partner had put out a contract for her to be killed and the New Zealand authorities were not able to protect her.

23    On 7 September 2018, a “different delegate” refused the appellant’s visa application (7 September 2018 Decision). The refusal was made under s 501(1) of the Migration Act. The delegate found that the appellant did not pass the character test because there was a risk that she would engage in criminal conduct if she remained in Australia by reason of her “extensive criminal history” and “other serious conduct”. We note that the summary provided by Mortimer J identified this delegate as a “different delegate” but the appellant submits that it was in fact the same delegate that made the decision on 16 December 2015. For present purposes, we do not consider that the alleged erroneous identification of the delegate as a “different delegate” is material.

24    On 3 December 2018, the Tribunal affirmed the 7 September 2018 decision.

25    On 25 February 2019, the Federal Court made orders by consent that the 7 September 2018 decision be set aside and remitted the appellant’s visa application to the Tribunal.

26    On 18 September 2019, a differently constituted Tribunal set aside the 7 September 2018 decision and remitted the application with a direction that the appellant was not to be refused a visa under s 501(1) of the Migration Act. The Tribunal considered that sending the appellant back to New Zealand would put Australia in breach of its international obligations, indefinite or prolonged detention was a decision that was only open to the criminal courts, not the executive, and there were strong humanitarian reasons for exercising the discretion in favour of the appellant. The Tribunal was not satisfied that there was a risk that the appellant would engage in criminal conduct because she had compelling reasons not do so and had not committed any offences since 2010.

27    Both the Minister and the appellant sought review of the Tribunal’s 18 September 2019 decision in this Court. The Minister sought to have the decision quashed and the appellant sought declaratory relief and an order compelling the Minister to determine her protection visa application in accordance with the Tribunal’s 18 December 2017 decision.

28    On 25 November 2019, the Court dismissed the Minister’s application, granted the relief sought by the appellant and ordered the Minister to determine the appellant’s application on or before 6 December 2019: Minister for Immigration, Citizenship, Migration Services and Multicultural Affairs v CPJ16 [2019] FCA 2033 (CPJ16 2019).

29    On 6 December 2019, the Minister purported to exercise his personal power under s 501A(2) of the Migration Act to set aside the Tribunal’s 18 December 2017 decision and refuse the appellant’s protection visa application.

30    On 18 May 2020, the Full Court dismissed an appeal from the Minister of the decision in CPJ16 2019 on the basis that the appeal was moot given the Minister had purported to exercise his powers under s 501A(2) of the Migration Act: Minister for Immigration, Citizenship, Migration Services and Multicultural Affairs v CPJ16 (2020) 276 FCR 1; [2020] FCAFC 87 (Flick, Perry and Thawley JJ).

31    On 9 July 2020, the Court set aside the Minister’s decision to exercise his s 501A(2) power and ordered the Minister to determine the appellant’s application for a protection visa according to law on or before 23 July 2020: CPJ16 v Minister for Immigration, Citizenship, Migration Services and Multicultural Affairs [2020] FCA 980 (Rares J). The Court found that the Minister had failed to “squarely address that the actual consequence of his decision would be that there was a real risk that the appellant would be killed or seriously harmed after being refouled” (at [47]) and the Minister’s consideration was flawed because it was based on a false premise that the appellant was a person seeking to avoid the New Zealand criminal justice system rather than a person at real risk of being killed or seriously harmed (at [50]).

32    On 23 July 2020, the Minister exercised his personal power pursuant to s 501A(3) of the Migration Act to again set aside the Tribunal’s decision dated 18 September 2019 and refused to grant the appellant a protection visa on character grounds.

33    On 2 October 2020, Mortimer J dismissed the appellant’s application for judicial review of the 23 July 2020 determination of the Minister: CPJ16 v Minister for Home Affairs [2020] FCA 1408.

34    On 27 November 2020, an appeal from the decision of Mortimer J was dismissed by the Full Court: CPJ16 v Minister for Home Affairs [2020] FCAFC 212 (Jagot, Griffiths and SC Derrington JJ).

35    On 12 August 2021, special leave to appeal from the decision of the Full Court was refused by the High Court: CPJ16 v Minister for Home Affairs [2021] HCASL 149.

36    On 23 June 2021, the appellant commenced the proceedings below before the primary judge in which she claimed that she had been unlawfully detained, sought an order for habeas corpus against the respondent and damages for false imprisonment.

37    On 10 September 2021, the primary judge ordered that the two separate questions were to be determined first at a hearing on 6 October 2021 because the lawfulness of the appellant’s detention was either at the core of, or affected in a material way, all of her claims and allegations.

38    On 17 December 2021, the primary judge made orders that both separate questions were to be answered in the negative and delivered reasons for judgment: BVZ21 v Commonwealth of Australia [2021] FCA 1598.

Relevant provisions of the Migration Act and principles

39    The following provisions of the Migration Act are relevant to the present question of the lawfulness of the ongoing detention of the appellant.

40    Section 4 sets out the objects of the Migration Act:

(1)    The object of this Act is to regulate, in the national interest, the coming into, and presence in, Australia of non-citizens.

(2)    To advance its object, this Act provides for visas permitting non-citizens to enter or remain in Australia and the Parliament intends that this Act be the only source of the right of non-citizens to so enter or remain.

(3)    To advance its object, this Act provides for non-citizens and citizens to be required to provide personal identifiers for the purposes of this Act or the regulations.

(4)    To advance its object, this Act provides for the removal or deportation from Australia of non-citizens whose presence in Australia is not permitted by this Act.

(5)    To advance its object, this Act provides for the taking of unauthorised maritime arrivals from Australia to a regional processing country.

41    Sections 13 and 14 in combination provide that a non-citizen who is in the migration zone (which includes the States and Territories) and does not hold a visa is, in effect, an unlawful non-citizen.

42    Section 189(1) provides:

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.

43    Section 5 defines “detain” to mean:

(a)    take into immigration detention; or

(b)    keep, or cause to be kept, in immigration detention;

and includes taking such action and using such force as are reasonably necessary to do so.

44    Section 196(1) provides:

An unlawful non-citizen detained under section 189 must be kept in immigration detention until:

(a)     he or she is removed from Australia under section 198 or 199; or

(aa)    an officer begins to deal with the non-citizen under subsection 198AD(3); or

(b)    he or she is deported under section 200; or

(c)    he or she is granted a visa.

45    The definition of “immigration detention” in s 5 relevantly extends to:

(a)     being in the company of, and restrained by:

(i)     an officer;

(ii)     in relation to a particular detainee—another person directed by the Secretary of Australian Border Force Commissioner to accompany and restrain the detainee; …

46    Section 198, entitled “Removal from Australia of unlawful non-citizens”, relevantly provides:

Removal on request

(1)    An officer must remove as soon as reasonably practicable an unlawful non-citizen who asks the Minister, in writing, to be so removed.

…

Removal of unlawful non-citizens in other circumstances

…

(6)    An officer must remove as soon as reasonably practicable an unlawful non-citizen if:

(a)    the non-citizen is a detainee; and

(b)    the non-citizen made a valid application for a substantive visa that can be granted when the applicant is in the migration zone; and

(c)    one of the following applies:

(i)    the grant of the visa has been refused and the application has been finally determined;

(ii)    the visa cannot be granted; and

(d)    the non-citizen has not made another valid application for a substantive visa that can be granted when the applicant is in the migration zone.

47    The combined effect of ss 189(1) and 196(1) of the Migration Act was considered in Commonwealth v AJL20 (2021) 391 ALR 562; [2021] HCA 21 (AJL20). The majority in the High Court in AJL20 (Kiefel CJ, Gageler, Keane and Steward JJ) stated at [35]:

The combined effect of ss 189(1) and 196(1) is that a non-citizen can be lawfully within the Australian community only if he or she has been granted a visa. Otherwise, an unlawful non-citizen must be detained until such time as he or she departs Australia by one of the means referred to in s 196(1), relevantly in this case removal under s 198. That removal is to be effectuated by the performance of the duty that s 198(6) places on officers of the Commonwealth to remove “as soon as reasonably practicable”. This view of the relationship between ss 196 and 198 has consistently been accepted and applied in the Federal Court.

(Footnotes omitted.)

48    The majority in AJL20 referred at [36] to the following statements by the Full Court in ASP15 and Another v Commonwealth and Another (2016) 248 FCR 372; [2016] FCAFC 145 (ASP15) at [40] concerning the relationship between s 196 and the duty to grant or refuse a visa under s 65 in a reasonable time:

It follows that once a valid visa application has been made, unless and until a decision is made either to grant or refuse a visa, detention is authorised and required by s 196(1). This conclusion is consistent with the binding authority of Al-Kateb as to the nature of lawful detention and the meaning of s 196(1) … Such detention does not cease to be for the purpose of considering and determining an application for a visa because the necessary process has not been completed within the time required by the Migration Act, be that time period express or implied. If in fact a court determines that the process to make a visa decision has gone on for too long, it nonetheless remains detention for that purpose and is both validly authorised and required by s 196(1) of the Migration Act. The normal remedy is court action to compel a visa decision to be made, one way or the other.

49    The majority in AJL20 also referred at [37] to the following observations of the Full Court in ASP15 at [42] concerning the implications of a failure by the Minister to make a decision on a visa decision within a required time:

The regime for immigration detention is valid for the purposes of making a visa decision precisely because it imposes an obligation on the Minister to make that decision within whatever time limit applies; detention only remains valid so long as such a purpose under the Migration Act continues to exist. In the case of detention pending a visa decision, failure to do so within the required time renders the Minister liable to the issue of a writ of mandamus to compel him or her to perform their statutory duty. However it does not render invalid the provision which authorises detention in the first place. So long as the Migration Act validly continues to authorise detention, there can be no claim for false imprisonment or habeas corpus.

50    The unavailability of habeas corpus for an unlawful non-citizen who has been detained in immigration detention was emphasised by the majority in AJL20 at [61]:

In contrast, ss 189 and 196 of the Act require the segregation of unlawful non-citizens, both before they are admitted pursuant to a visa and in order to facilitate their removal if a visa is not granted. Given this statutory requirement, it matters not why an officer of the Executive might detain a person because, provided that person is in fact an unlawful non-citizen, the Parliament has required that he or she be detained. Because the evident intention of the Act is that an unlawful non-citizen may not, in any circumstances, be at liberty in the Australian community, no question of release on habeas can arise. As Hayne J, with whom McHugh and Heydon JJ relevantly agreed, said in Al-Kateb:

“The questions which arise about mandatory detention do not arise as a choice between detention and freedom. The detention to be examined is not the detention of someone who, but for the fact of detention, would have been, and been entitled to be, free in the Australian community.”

(Footnotes omitted.)

Decision of the primary judge

51    In the proceedings before the primary judge, the appellant relied upon three sworn affidavits in which she gave evidence of her detention and treatment in detention, her illnesses and injuries that she had suffered, difficulties that she had encountered with her legal representatives and correspondence with and/or decisions of the New Zealand Consul-General, the Department of the Minister responsible from time to time for administering the Migration Act, the Minister, the Tribunal, this Court, both at first instance and on appeal, and the High Court.

52    The primary judge found that a key fact that the appellant had established was that she had booked an airline ticket to fly from Australia to Indonesia on 19 June 2016 and she had not been permitted to leave immigration detention to board the flight.

53    The primary judge found that in light of the procedural history, summarised above, the appellant’s evidence that she remained a protection visa applicant could not be accepted.

54    The primary judge found that at that time the appellant sought to leave Australia to go to Indonesia on 19 June 2016 and thereafter the appellant was not an Australian citizen, she did not hold a valid visa and she was therefore an unlawful non-citizen.

55    The respondent relied upon affidavits from three status resolution officers who had been assigned to manage the appellant’s case. The primary judge accepted the evidence from each status resolution officer that during the time that they respectively had responsibility for the appellant they knew or reasonably suspected that she was not an Australian citizen and did not hold a valid visa. The primary judge found that the same conclusion was able to be reached from the bundle of Departmental records for the period from May to September 2016, a period not covered by the evidence of the three status resolution officers.

56    The primary judge concluded that at all times that the appellant had been in immigration detention she had been an unlawful non-citizen and that this was known to those persons responsible for her detention.

57    The primary judge concluded that the appellant’s detention by the respondent at all times after 19 June 2016 had not been unlawful and answered the first separate question in the negative.

58    In reaching that conclusion, the primary judge placed particular reliance on the following statements of principle by the Full Court in Commonwealth of Australia v MZZHL [2021] FCAFC 191 (MZZHL) (Griffiths, Perry and Bromwich JJ):

30     After analysing earlier High Court authorities, including Plaintiff M96A/2016 v Commonwealth of Australia [2017] HCA 16; 261 CLR 582; Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs [1992] HCA 64; 176 CLR 1; Plaintiff S4/2014 v Minister for Immigration and Border Protection [2014] HCA 34; 253 CLR 219 and Al-Kateb v Godwin [2004] HCA 37; 219 CLR 562, the majority [in AJL20] held that the operation of ss 189(1) and 196(1) is not conditional upon compliance with s 198(6), either as a matter of ordinary statutory construction or in order to preserve its constitutional validity. Their Honours said at [51] (emphasis in original):

The duty imposed upon officers of the Executive by ss 189(1) and 196(1) of the Act is to detain the unlawful non‑citizen until the occurrence of one of the events referred to in s 196. The duty so imposed by the Act is neither conditional upon, nor co‑extensive with, the intents or purposes of officers of the Executive towards the detainee.

(See also the penultimate sentence of [48] of the plurality’s reasons as set out above at [29].)

…

33    The respondent submitted that AJL20 High Court did not foreclose the first path of reasoning applied by the primary judge in the present proceeding. He contended that that path of reasoning remains sound, despite AJL20 High Court, and continues to be supported by cases such as Plaintiff S4; Plaintiff M61/2010E v Commonwealth of Australia [2010] HCA 41; 243 CLR 319; Plaintiff M76/2013 v Minister for Immigration, Multicultural Affairs and Citizenship [2013] HCA 53; 251 CLR 322 and Plaintiff M79/2012 v Minister for Immigration and Citizenship [2013] HCA 24; 252 CLR 336. For the following reasons, that submission cannot be accepted.

34     First, the respondent has misunderstood Plaintiff S4. It was not a case about detention. Rather it focused on a different question, namely whether s 195A of the Migration Act empowered the Minister to grant a visa which precluded the person from making a valid application for a protection visa in circumstances where the Minister had already commenced considering exercising the personal non-compellable power under s 46A(2) to permit the person to make a valid application for a protection visa. As the majority explained in AJL20 High Court at [70], Plaintiff S4 is properly understood as emphasising:

… why administrative steps that prolonged detention must be taken within the framework of the Act and subject to its implicit temporal limits. Their Honours were not expressing a conclusion that failure to comply with a duty to bring about one of the terminating events in s 196(1) had the consequence that, ipso facto, detention became unlawful.

35    Secondly, as the Commonwealth contended, Plaintiff S4 does not support the primary judge’s reasoning to the effect that, because his Honour held that the Commonwealth was taking insufficient steps to secure or attempt to secure the removal of MZZHL and had “abandoned any attempt to undertake such steps”, this meant that the detention was unlawful. Plaintiff S4 supports the Commonwealth’s contention in the present proceeding that the circumstances here did not establish that there were no enforceable limits on the respondent’s detention. Where the Executive has failed to comply with its statutory duty of removal under s 198, it is open to someone in MZZHL’s circumstances to enforce that obligation through mandamus. As the majority said in AJL20 High Court at [68]:

… Plaintiff S4 does not authorise reasoning from a finding of want of proper diligence in the performance of the duty to remove to a conclusion that some unauthorised punitive purpose is being pursued by the Executive.

And, as noted above, the majority referred earlier at [52] to the remedy of mandamus being available to compel the proper performance of the “hedging duties”, including the duty of removal.

36     The related cases to Plaintiff S4 upon which the respondent relies take the matter no further. First, while reliance was sought to be placed on Hayne J’s dissenting judgment in Plaintiff M79 as providing “context” for his Honour’s views in Plaintiff M76 and the Court’s view in Plaintiff S4, the reasons of the majority in AJL20 High Court proceed on the basis that Plaintiff M76 adds nothing to what was said by the majority in Plaintiff S4 (see at [27] and fn 24).

(Emphasis in original.)

59    The primary judge found that, given his findings that the appellant was an unlawful non-citizen and did not have a visa, he was bound by the decisions in AJL20 and MZZHL to find that the detention of the appellant had been lawful. He stated that this conclusion was not affected by any failure to remove the appellant, including by not permitting her to board the flight to Indonesia on 19 June 2019 and thereafter.

60    The primary judge also answered the second separate question in the negative.

61    The primary judge observed that the writ of habeas corpus is directed at the appellant’s current detention, citing the statement by Black CJ in the Full Court decision of Ruddock and Others v Vardarlis and Others (2001) 110 FCR 491; [2001] FCA 1329 at [71] (in dissent, but commenting on the writ of habeas corpus in uncontroversial terms). He then referred to the binding statement by the majority in AJL20 at [61], that as:

the evident intention of the [Migration Act] is that an unlawful non-citizen may not, in any circumstances, be at liberty in the Australian community, no question of release on habeas corpus can arise.

62    The primary judge, after answering both questions in the negative, observed that the appellant did not have any arguable case for false imprisonment because her detention had been found to be lawful but noted that the appellant may well have other remedies that she might wish to pursue in the light of those answers.

Grounds 1, 3 & 4

63    It is convenient to deal with Grounds 1, 3 and 4 together. In substance, each properly understood contends that the primary judge erred in law in answering each of the separate questions in the negative.

64    Framing appeal grounds by reference to expressions such as “legally unreasonable”, “illogical and irrational” and “unlawful” in proceedings that, as submitted by the respondent, are not in style or substance judicial review proceedings, does not materially advance the appellant’s challenge to the primary judge’s decision.

65    Further, although a decision of a Court might in exceptional circumstances be characterised as “legally unreasonable”, the ground was in effect advanced during the hearing as a contention that the primary judge had erred, as a matter of law, in answering the stated questions in the negative.

Submissions

66    The appellant submits that the primary judge erred in confining his consideration to the Migration Act and that her detention had come to an end on 19 June 2016, as prescribed by s 196(1). She contends that her action in organising and paying for her own removal to a third country gave rise to a “terminating event” that was specified in s 196(1) of the Migration Act, namely her request to the Minister and the relevant case officers that she be transported to the airport to enable her to board her flight to depart Australia in accordance with s 198(1).

67    The appellant further submits that she has satisfied all the criteria for a protection visa since the 17 December 2017 decision of the Tribunal and she does not meet the exclusion or refusal decision making criteria for a protection visa.

68    The appellant seeks to distinguish AJL20 on the basis that she had paid for her own removal to a third country, unlike the applicant in AJL20 who, by reason of Australia’s non refoulement obligations, could not be removed to his country of origin and thus resulted in the continuation of his detention being lawful.

69    The appellant further submits that the primary judge erred in failing to have regard to the Public Service Act 1999 (Cth), the “Legislation Act”, the Constitution and international law.

70    The appellant also submits that her detention could not have remained lawful unless the Commonwealth could establish that the Department’s case officer was permitted to prevent her from departing from Australia. She submitted that s 198(1) of the Migration Act made clear that on a removal request an officer of the Department must remove an unlawful non-citizen as soon as reasonably practicable.

Consideration

71    As submitted by the respondent, to the extent that the appellant seeks to rely on a failure by the primary judge to have regard to the Public Service Act 1999 (Cth), the “Legislation Act”, the Constitution and international law, the ground cannot succeed. None is relevant to the present proceeding and none was relied upon by the appellant before the primary judge. Moreover, as the respondent submits, any international law applicable to protection visas is not relevant given the appellant has exhausted all her challenges to the decisions refusing to grant her a protection visa.

72    The primary judge found that the appellant has never been an Australian citizen, at no time since the cancellation of her visa in 2010 has she held a visa and the status resolution officers of the Department knew or reasonably suspected that the appellant was not an Australian citizen. Those findings were established by the evidence of the Department’s status resolution officers and the Department’s records in evidence before the primary judge. The appellant does not challenge those findings. She has therefore, at all times since 2010, been an unlawful non-citizen who must be detained in immigration detention by reason of s 189 of the Migration Act until an event specified in s 196(1) of the Migration Act has occurred.

73    Moreover, as made plain from the appellant’s procedural history outlined above, all of the administrative and migration law proceedings that she commenced in an attempt to procure the issue of a protection visa have been finalised. In particular, the decision in CPJ16 v Minister for Home Affairs [2020] FCA 1408 (Mortimer J) has been upheld by the Full Court in CPJ16 v Minister for Home Affairs [2020] FCAFC 212 (Jagot, Griffiths and SC Derrington JJ) and special leave has been refused: CPJ16 v Minister for Home Affairs [2021] HCASL 149.

74    The appellant’s reliance on her request to be removed to a third country pursuant to s 198(1) of the Migration Act as an alleged terminating event for the purposes of s 196(1) is misplaced.

75    By reason of s 196(1)(a), an unlawful non-citizen detained under s 189 must be kept in immigration detention until he or she is removed from Australia.

76    A person is not removed from Australia for the purposes of s 196(1) of the Migration Act until they have departed Australia. As explained above, s 5 of the Migration Act provides that a person remains in immigration detention when he or she is in the company of and being restrained by an officer or another person directed by the Secretary of Australian Border Force Commissioner to accompany and restrain the detainee.

77    The obligation imposed on an officer to remove an unlawful non-citizen pursuant to s 198 as soon as reasonably practicable is discrete and distinct from the obligation to keep an unlawful non-citizen in detention pursuant to ss 189(1) and 196(1) of the Migration Act. A failure to give effect to a written request for removal pursuant to s 198(1) of the Migration Act does not render the detention of an unlawful non-citizen unlawful. As the Full Court made plain in MZZHL at [30], the operation of ss 189(1) and 196(1) of the Migration Act is not conditional upon compliance with s 198 of the Migration Act, either as a matter of ordinary statutory construction or in order to preserve its constitutional validity.

78    Any dilatory failure by officers of the Commonwealth to comply with duties imposed by s 198 to remove an unlawful non-citizen as “soon as reasonably practicable” is enforceable by a writ of mandamus but any failure to comply with those duties does not render the detention of an applicant for removal unlawful. As the majority in AJL20 explained at [52]:

Where the Executive is dilatory in performing the hedging duties imposed upon it, as French J observed, the remedy of mandamus is available to compel the proper performance of those duties.

(Footnote omitted.)

79    Equally, any alleged refusal by the relevant officers to comply with a written request from the appellant to remove her to a third country cannot render her continuing detention unlawful. Again, the relevant remedy is a writ of mandamus to compel the relevant officers to perform their duties properly.

80    Further, we observe that no constitutional issue arises in the present case. Sections 189 and 196 of the Migration Act have expressly been held to be constitutionally valid and reading down ss 189 and 196 to impose constitutional constraints on administrative detention under the Migration Act was rejected by the High Court in AJL20. The majority held, at [42]:

The primary judge approached the construction of s 196 of the Act “in light of the constitutional constraints upon administrative detention which flow from Chapter III of the Constitution … which provides for the separation of judicial power from the executive and legislative powers”. In his Honour’s view, endorsed by the respondent on appeal, the scheme of immigration detention could not, given the implications of Ch III, validly be enacted by the Parliament under s 51(xix) of the Constitution save where the Executive could be shown in any particular case to perform its obligations to remove the detainee as soon as reasonably practicable. This approach conflated questions of constitutional validity with questions of statutory interpretation, and questions concerning the purpose of the Act with questions concerning the purpose of the officers of the Executive bound by it. It was also contrary to the clear course of authority.

(Footnote omitted.)

81    Finally, we note that art 3(1) of the United Nations Convention on the Rights of the Child, opened for signature 20 November 1989, 1577 UNTS 3 (entered into force 2 September 1990) (Convention) provides that in “all actions concerning children … the best interests of the child shall be a primary consideration”. Although the Convention was ratified by Australia on 17 December 1990 it has only been implemented in Australia in limited and specific respects. These include in Ministerial directions concerning considerations to be taken into account by decision makers in considering applications by persons who have had visas cancelled or refused on character grounds. They neither purport to, nor could they, implement the Convention in its entirety into Australian law. The Convention is not relevant to the confined exercise of statutory construction that the primary judge undertook to determine the lawfulness of the appellant’s detention.

82    In the light of the primary judge’s unchallenged findings that the appellant was not an Australian citizen and did not hold a valid visa, we are satisfied that the primary judge was plainly correct, given the decisions of the High Court in AJL20 and the Full Court in MZZHL, to find that the detention of the appellant was not unlawful and that no writ of habeas corpus was available. We agree with the primary judge’s conclusion that both separate questions must be answered in the negative.

83    Grounds 1, 3 and 4 have not been established.

Ground 2

84    The appellant submits that the primary judge did not have regard to the best interests of her nine year old Australian child, as a primary consideration as required by Ministerial Direction 79 and in accordance with the Convention. She submits that a Children’s Court proceeding involving her child could not proceed because she remains in immigration detention and she was not able to defend allegations made against her that she had neglected her child. She submits that the Convention rendered this unlawful, as a child and his or her parents must be given an opportunity to have any allegations heard in Court before any Court orders are entered. She contends that she should have been given a bridging visa to allow her Australian child his rights to have his hearing in the Children’s Court.

85    As we have explained above, these proceedings are concerned only with the legality of the appellant’s ongoing detention and whether she is entitled to be released from that detention by way of a writ of habeas corpus. Those questions raise matters of statutory interpretation, specifically the interrelationship between ss 189 and 196 of the Migration Act. The “best interests of the child” are not relevant to a determination of either of those questions.

86    As submitted by the respondent, the answers to the separate questions turn on the proper construction of ss 189 and 196 of the Migration Act and further, the “best interests of the child” consideration was not relied upon by the appellant before the primary judge, the Convention is not incorporated into domestic law, the “best interests of the child” are only relevant to administrative decisions, not decisions of a Court on judicial review, and neither the primary judge nor this Court are concerned with whether the appellant ought to be granted a protection visa.

87    Ground 2 has not been established.

Disposition

88    The notice of appeal is to be dismissed.

89    The appellant is to pay the respondent’s costs, as agreed or taxed.

Associate:    

Dated:    21 July 2022