Federal Court of Australia

AKW22 v Commonwealth of Australia [2024] FCAFC 22

ORDERS

THE COURT ORDERS THAT:

1.    The applicant be granted an extension of time in which to seek leave to appeal in WAD114 of 2023.

2.    The applicant be refused leave to appeal in each of WAD114 of 2023, WAD178 of 2023 and WAD217 of 2023.

3.    The applicant pay the respondent’s costs of each application.

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

REASONS FOR JUDGMENT

THE COURT

Introduction

1    The applicant is a citizen of India whose skilled independent BN subclass 136 visa was cancelled in 2011 pursuant to s 501(2) of the Migration Act 1958 (Cth), following convictions for sexual offending against children. He was detained as an unlawful non-citizen for the period from his release from prison in January 2013 until August 2023, when he was removed pursuant to s 198 of the Migration Act. He is now in India.

2    The applicant seeks leave to appeal from three decisions of this Court.

(a)    In WAD114 of 2023, the applicant challenges the decision of a Judge of this Court in AKW22 v Commonwealth of Australia (No 2) [2023] FCA 332, dated 14 April 2023 (AKW22 April 2023), striking out the applicant’s statement of claim in proceedings seeking damages for false imprisonment which pleaded the fact of detention but made no allegation of unlawfulness, and dismissing the proceedings (the false imprisonment claim). The applicant also requires an extension of time in which to seek leave to appeal.

(b)    In WAD178 of 2023, the applicant challenges the decision of another Judge of this Court in AKW22 v Commonwealth of Australia [2023] FCA 786, dated 10 July 2023 (AKW22 July 2023), refusing to enjoin the Commonwealth, in aid of an application for a writ of habeas corpus, to restrain his removal from Australia (the first interlocutory injunction application).

(c)    In WAD217 of 2023, the applicant challenges the decision of yet a third Judge of this Court in AKW22 v Commonwealth of Australia (No 2) [2023] FCA 955, dated 13 August 2023 (AKW22 August 2023), refusing both a second application for an interlocutory injunction and a writ of habeas corpus (the second interlocutory injunction application).

3    Upon the conclusion of this hearing, the applicant will have had 16 judgments relating to his visa status and removal from Australia in accordance with the provisions of the Migration Act. His final challenge to the cancellation of his visa was in April 2019, when the High Court dismissed his application for special leave to appeal from the decision of the Full Court of this Court in Applicant in WAD531/2016 v Minister for Immigration and Border Protection [2018] FCAFC 213. The High Court decision was the seventh occasion on which a court or tribunal had dealt with his visa status.

4    In 2022, the applicant first applied for a writ of habeas corpus. On 26 July 2022, that application was refused: AKW22 v Commonwealth of Australia [2022] FCA 869 (AKW22 [2022]). Justice Colvin said, at [11]:

In the present case, the undisputed evidence before the court concerning the required knowledge or suspicion of an officer is that as at the time of the hearing there was a relevant officer who had the required knowledge or suspicion [under s 189(1) of the Migration Act]. The applicant advanced no evidence as to why there was an issue concerning the lawfulness of his detention by reason of past circumstances. The applicant did not point to an unanswered inquiry or circumstances that required response having regard to the circumstances of the exercise of the statutory power and its nature. The applicant did not identify any circumstances about his visa status that might call into question whether an officer could have formed the required suspicion at the time he was taken into detention or thereafter.

5    In none of the applications pursued by the applicant has there been any change to the underlying factual substratum of his circumstances. The applicant has, at all relevant times, remained an unlawful non-citizen and, as such, was required to be removed from Australia. The applicant was no doubt entitled to make whatever application he thought fit to bring in his own interests and to test the legality of his continued detention. Having done so and failed, his repeated use of the resources of the Federal Court to agitate applications on essentially identical bases, without any new evidentiary grounds, that are demonstrably without reasonable prospects is an abuse of the Court’s processes. As Mortimer J (as her Honour then was) said in CPK20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 825 at [15]:

In public law, evaluating the ‘risk of injustice’ to the repository of a public power may involve a different kind of evaluation. The risk of injustice may, in such circumstances, relate to the frustration of legislative intention within a legislative scheme, or the interruption of a course otherwise contemplated by law.

6    For the reasons that follow, the three applications for leave to appeal currently before this Court must fail.

THE APPLICATIONS FOR LEAVE TO APPEAL

7    There is no dispute that each of the decisions below were interlocutory and therefore require leave pursuant to s 24(1A) of the Federal Court of Australia Act 1976 (Cth) (FCA Act). There is also no dispute that, properly characterised, the applications did not affect the “liberty of an individual” within the meaning of s 24(1C)(a) of the FCA Act. That is because none of the orders, in respect of which leave to appeal is sought, had a direct effect on the applicant’s liberty in the sense of subjecting them to direct incarceration or other total deprivation of his or her physical liberty: BET20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 6 at [64]. The false imprisonment claim sought damages. Self-evidently, a claim for damages does not affect the liberty of a person. The first and second interlocutory injunction applications were to restrain the applicant’s removal from Australia in circumstances where, if the applicant succeeded, he would remain in detention. Having been unsuccessful in those applications, the applicant in fact had his liberty restored. The manifest purpose of s 24(1C)(a) is to permit an appeal, as of right, where an interlocutory order has the effect of depriving a person of his or liberty.

8    The principles relevant to a grant of leave to appeal are well settled. To obtain leave to appeal, the applicant must demonstrate firstly that the decision below is attended by sufficient doubt to warrant its reconsideration by an appellate court, and secondly that substantial injustice would result if leave to appeal was refused, supposing the decision to be wrong: Décor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 at 398–399. These considerations are cumulative, such that each limb must ordinarily be made out in order for leave to appeal to be granted: Rawson Finances Pty Ltd v Deputy Commissioner of Taxation [2010] FCAFC 139; 81 ATR 36 at [5].

The false imprisonment claim

9    The applicant requires, and has sought, an extension of time to seek leave to appeal. The applicant’s solicitor provides no explanation for the delay other than he “believe[d] the application was made within 14 days of the order in accordance with Rule 35.13(a) of the Rules”. Practitioners are expected to be able to reckon time in accordance with r 1.61 of the Federal Court Rules 2011 (Cth). However, as the delay was very short – a matter of three days – it is appropriate to grant the extension of time.

10    The primary judge struck out the applicant’s statement claim on the basis that he had not discharged the obligation to plead an element of the cause of action in false imprisonment, namely the element of unlawfulness: AKW22 April 2023 at [34]. The primary judge summarily dismissed the claim.

11    There was no dispute that, at the time of making his application for false imprisonment, he was an unlawful non-citizen who was detained under the Migration Act. There was also no dispute that the applicant’s detention was the consequence of an officer knowing, or reasonably suspecting that the applicant, who was in the migration zone, was an unlawful non-citizen and was required to so detain the applicant pursuant to s 189(1) of the Migration Act. So much had been determined by the same Judge in AKW22 [2022] in which the applicant had conceded, at [3], that at the date of that hearing – 14 June 2022 – an officer knew or reasonably suspected that the applicant was an unlawful citizen. The primary judge found that the applicant had not identified any circumstances about his visa status that might have called into question whether an officer could have formed the suspicion required at the time that the applicant was taken into detention or thereafter: AKW22 [2022] at [11]. His application for a writ of habeas corpus was refused. An appeal from that decision was refused by the Full Court: AKW22 v Commonwealth (2023) 297 FCR 650.

12    The applicant submitted that the anterior error made by Colvin J was to order the applicant to file a statement of claim. That order was made on 1 February 2023 subsequent to the determination of the application for habeas corpus in AKW22 [2022] and in circumstances where the Amended Originating Application dated 6 May 2022 had, in addition to habeas corpus, sought damages for false imprisonment. Rule 8.05 of the Rules requires an originating application seeking relief that includes damages, subject to certain exceptions that are not presently relevant, to be accompanied by a statement of claim.

13    Omitting formal parts, the Statement of Claim pleaded:

B. Detention of the Applicant

3.     As at 6 January 2023 AKW22 has been detained by or on behalf of the Commonwealth for a total of 3624 days.

                    Particulars

(a)    On 30 January 2013 AKW22 was released from Karnet Prison Farm in Serpentine, Western Australia, after he was granted parole.

(b)    AKW22 was immediately detained by or on behalf of the Commonwealth and transferred to the Perth Immigration Detention Centre ['Perth'] where he remained until 7 January 2015.

(c)    On or about 7 January 2015 AKW22 was transferred to the Yongah Hill Immigration Detention Centre ['Yongah Hill'] where he remained until 12 October 2015.

(d)    On or about 12 October 2015 AKW22 was transferred back to Perth where he remained until 22 March 2017.

(e)    On or about 23 March 2017 AKW22 was transferred back to Yongah Hill where he remained until 8 August 2017.

(f)    On or about 8 August 2017 AKW22 was transferred to the Christmas Island Detention Centre ['Christmas Island'] where he remained until 8 May 2018.

(g)    On or about 9 May 2018 AKW22 was transferred back to Yongah Hill where he remained until 3 September 2018.

(h)    On or about 4 September 2018 AKW22 was transferred back to Christmas Island where he remained until 26 September 2018.

(i)    On or about 27 September 2018 AKW22 was transferred back to Yongah Hill where he remained until 1 May 2022.

(j)    On 1 May 2022 AKW22 suffered a heart attack, and was transferred to Northam Hospital and then to Royal Perth Hospital (‘the RPH’) where he was surgically treated.

(k)    On or about 5 May 2022 AKW22 was transferred from the RPH to Perth where he remained until 13 June 2022.

(l)    On or about 13 June 2022 AKW22 was transferred back to Yongah Hill where he remained until 5 December 2022.

(m)    On or about 5 December 2022 AKW22 was transferred to Perth where he remains detained.

C. Relief Sought

4.    The Applicant claims the relief set out in the Amended Originating Application dated 6 May 2022.

14    The applicant submitted that his plea of having been detained for 3624 days was sufficient to disclose a reasonable cause of action in the tort of false imprisonment. He contended that he did not have to plead the absence of lawful justification of the detention because that was matter he did not have to prove and accordingly, by reason of r 16.03(2) of the Rules, he did not have to plead it. That rule provides:

…a party need not plead a fact if the burden of proving the fact does not lie on that party.

15    As the primary judge, correctly with respect, observed, the tort of false imprisonment has two elements: detention, and the absence of lawful justification for the detention: AKW22 April 2023 at [2]. This has been well recognised at least since 1786 when Sir William Blackstone wrote: “to constitute the injury of false imprisonment there are two points requisite: 1. The detention of the person; and, 2. The unlawfulness of such detention”: Blackstone, Commentaries on the Laws of England (1786) Book III, Ch 8, p 127.

16    An applicant must have a basis for asserting each element of the cause of action. That of course does not mean that an applicant must prove each element. There is no dispute that the burden of proving lawful justification for a person’s imprisonment (or detention) lies on the defendant: Brown v Lizars (1905) 2 CLR 837 at 853-854; Watson v Marshall and Cade (1971) 124 CLR 621 at 626; Ruddock v Taylor [2005] HCA 48; 222 CLR 612 at [64], [140]; Lewis v Australian Capital Territory [2020] HCA 26; 271 CLR 192; MZAPC v Minister for Immigration and Border Protection [2021] HCA 17; 273 CLR 506 at [111]; R (WL (Congo)) v Home Secretary [2011] UKSC; [2012] 1 AC 245 at [65].

17    Rule 16.02(2)(e) of the Rules provides that a pleading must not fail to disclose, inter alia, a reasonable cause of action. For the purposes of this rule, a “reasonable cause of action” means one which has a measure of success if regard is had only to the allegations and pleadings relied on: Davey v Bentinck [1893] 1 QB 185; Allstate Life Insurance Co v Australia & New Zealand Banking Group Ltd (Unreported, FCA, Beaumont J, 13 September 1994) cited with approval in Polar Aviation Pty Ltd v Civil Aviation Safety Authority (No 4) [2011] FCA 1126 at [9], upheld on appeal ([2012] FCAFC 97; 203 FCR 325 at [42]-[43]). A pleading that does not plead each element of a cause of action necessarily fails to disclose a reasonable cause of action. This conclusion is consistent with pleading practice in the High Court of England and Wales: Bullen & Leake & Jacob’s Precedent of Pleadings (19th ed, Sweet & Maxwell, 2020) at 5-B9, 5-B12, 5-B15. The primary judge was correct in his observation, at [27]:

In any case where the onus falls upon a respondent to establish that an element of a cause of action is not proven, an applicant must still have some reason to make the claim. Further, as a matter of pleading practice, that reason must be pleaded. To insist upon such a plea is not to require the applicant to prove that in respect of which the respondent has the onus. Nor is it to require an anticipatory plea. It is to require some foundation for the bringing of the case.

18    Further, r 16.03(2) does not relieve the applicant from an obligation to plead the unlawfulness of his detention. Rather, whether his detention is unlawful is a conclusion of law. The facts which need to be proved by the respondent in order to discharge the burden of proving lawful justification are: that the applicant is an unlawful non-citizen; that the applicant is in the migration zone; and that an officer knows, or reasonably suspects, those matters. Rule 16.03(2) does not require the applicant to plead those facts.

19    In bringing his claim for false imprisonment, the applicant did not resile from his earlier position. Indeed, that was the difficulty with his pleading which led to its being struck out. He did not plead that his imprisonment was unlawful and conceded that he was not in a position to plead any probable cause or basis for the unlawfulness of his detention: AKW22 April 2023 at [2]. Consequently, this was not a case where giving the applicant an opportunity to re-plead a reasonable cause of action would avail the applicant: White Industries Australia Ltd v Federal Commissioner of Taxation (2007) 160 FCR 298 at [47]. The applicant had made clear that he could not.

20    In such circumstances, the primary judge’s decision to summarily dismiss the proceedings on the basis that the applicant has no reasonable prospect of successfully prosecuting the proceedings, and that the pleadings do not disclose any reasonable cause of action, is not attended with sufficient doubt to warrant its reconsideration by the Full Court.

21    Further, assuming that decision to have been in error, no substantial injustice would be caused to the applicant by a refusal to grant leave. The applicant made no claim to be a citizen, did not challenge his status as an unlawful non-citizen, has pursued both merits review and judicial review of his visa cancellation, made no claim that he has requested, and been refused, an explanation for his detention, raised no claim that his detention was not in accordance with the provisions of the Migration Act, nor that there is any reason to suppose that his detention has become unlawful since the concession he made in June 2022.

22    The application for leave to appeal the striking out of the applicant’s statement of claim and the summary dismissal of the false imprisonment claim should be refused.

The first interlocutory injunction application

23    The applicant seeks leave to appeal against the decision of the primary judge refusing to grant an interlocutory injunction to restraining his removal for two or three days so that an application for habeas corpus could be determined. The latter application was filed at 2.00pm on 10 July 2023 and the hearing of the injunction was convened at 3.45pm on that same day.

24    The applicant also complains about the refusal to stay the hearing, relying on the decision in WAJC v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 1631. WAJC concerned an application to restrain the removal of a minor, on 22 December 2002, to Nauru, his having been brought to Perth to give evidence at an inquest. The proceeding was stayed on 20 December 2002 for three days to permit a formal application for judicial review to be made. Ultimately, the Court determined it did not have jurisdiction. Decisions of this nature are discretionary in character. The circumstances of each case differ. Unless an error of the kind articulated in House v The King (1936) 55 CLR 499 at 504-505 is established, an appeal court will not interfere with the decision of the primary judge. No such error has been identified or established.

25    The applicant contended that the injunction ought to have been granted because to remove him would breach s 11 of the Habeas Corpus Act 1679 (31 Car. II c.2). That section provides:

XI    No subject to be sent Prisoner into Scotland, &c. or any Parts beyond the Seas. Persons so imprisoned may maintain Action against the Person committing or otherwise acting in respect thereof, as herein mentioned; Treble Costs and Damages; and the Person so committing or acting disabled from Office, and incur Premunire 16 R. 11. c. 5. and be incapable of Pardon.

And for preventing illegall Imprisonments in Prisons beyond the Seas noe Subject of this Realme that now is or hereafter shall be an Inhabitant of Resiant of this Kingdome of England Dominion of Wales or Towne of Berwicke upon Tweede shall or maybe sent Prisoner into Scotland Ireland Jersey Gaurnsey Tangeir or into any Parts Garrisons Islands or Places beyond the Seas which are or at any time hereafter [shall be] within or without the Dominions of His Majestie His Heires or Successors and that every such Imprisonment is hereby enacted and adjudged to be illegall and that if any of the said Subjects now is or hereafter shall bee soe imprisoned [every such person and persons soe imprisoned] shall and may for every such Imprisonment maintaine by vertue of this Act an Action or Actions of false Imprisonment in any of His Majestyes Courts of Record against the person or persons by whome he or she shall be soe committed detained imprisoned sent Prisoner or transported contrary to the true meaning of this Act and against all or any person or persons that shall frame contrive write seale or countersigne any Warrant or Writeing for such Committment Detainer Imprisonment or Transportation or shall be adviseing aiding or assisting in the same or any of them and the Plaintiffe in every such Action shall have Judgement to recover his . . . Costs besides Damages which Damages soe to be given shall not be lesse then Five hundred pounds In which Action noe delay stay or stopp of Proceeding by Rule Order or Command nor noe Injunction . . . whatsoever . . . shall be allowed [excepting such Rule of the Court wherein the Action shall depend made in open Court as shall bee thought in Justice necessary for speciall cause to be expressed in the said Rule] and the person or persons who shall knowingly frame contrive write seale or countersigne any Warrant for such Committment Detainer or Transportation or shall soe commit detaine imprison or transport any person or persons contrary to this Act or be any wayes adviseing aiding or assisting therein being lawfully convicted thereof shall be disabled from thenceforth to beare any Office of Trust or Proffitt within the said Realme of England Dominion of Wales or Towne of Berwicke upon Tweede or any of the Islands Territories or Dominions thereunto belonging and [be liable to imprisonment for life] and be incapeable of any Pardon from the King His Heires or Successors of the said . . . Disabilities or any of them.

26    As Brennan J said in Re Bolton; ex parte Beane (1987) 162 CLR 514 at 520-521, the ancient principles of the common law and the ancient statutes:

are so much part of the accepted constitutional framework that their terms, if not their very existence, may be overlooked until a case arises which evokes their contemporary and undiminished force.

27    Jealous though the law of this country is of any infringement of personal liberty, it nevertheless remains a question of construction of the statute which purports to impinge upon that liberty. In the circumstances of the present case, the statutory mandate in s 198 of the Migration Act qualifies the general freedom guaranteed by the Habeas Corpus Act. Justice Brennan singled out the “laws relating to the return and deportation of prohibited immigrants and the deportation of aliens” as exceptions to the general freedoms: Re Bolton at 521.

28    Leave to appeal should be refused. First, no substantial injustice would flow from the refusal of leave, even if there is error shown on the part of the primary judge. The applicant is no longer in immigration detention. He is at liberty in India. Consequently, no application for a writ of habeas corpus could be entertained by the Court: Re Stanbridge’s Application (1996) 70 ALJR 640 at 642; Australian Securities and Investments Commission v White (Unreported, FCA, Cooper, Sundberg and Marshall JJ, 10 November 1998).

29    Secondly, the decision of the primary judge is not attended by sufficient doubt to warrant its reconsideration by a Full Court.

30    In his written submissions, the applicant submitted that the question of whether there was a serious question to be tried was not required to be answered by the primary judge because what was sought was a quia timet injunction based on the apprehended contempt of Court, being the removal of the applicant while an application for a writ of habeas corpus remained pending. Although the interlocutory application as filed was in those terms, it is apparent from the orders of the primary judge that an application for an interlocutory injunction to restrain the removal of the applicant from Australia was made in stanta.

31    In his oral submission before this Court, the applicant contended that a serious question was, in any event before the primary judge, being the interaction of Part 8C of the Migration Act with ss 189 and 196, which he submitted rendered his detention unlawful since at least 2021. That was on the basis that s 486N, read together with ss 486L and 486M, obliges the Secretary of the Department to give the Commonwealth a report every six months relating to the circumstances of a person’s detention. The Ombudsman is then required, by s 486O, as soon as practicable after the receipt of the Secretary’s report, to give the Minister an assessment of the appropriateness of the arrangements for the person in detention. The Minister is not bound by any recommendations made by the Ombudsman: s 486O(4). Section 486P requires the Minister to table in the Parliament a statement relating to the content of the assessment within 15 sitting days after the Minister receives it. The reports are required even if the person has, since the detention reporting time, ceased to be in immigration detention: ss 486N(3), 486O(6). The Migration Act does not provide for any consequences in the event there is non-compliance with any of these provisions.

32    There was no dispute that no statement relating to the applicant had been tabled in 2022.

33    Part 8C of the Migration Act was introduced by Sch 1, item 19 of the Migration Amendment (Detention Arrangements) Act 2005 (Cth) to provide a mechanism for monitoring the arrangements of people who had been in detention for more than two years. The Explanatory Memorandum to the Migration Amendment (Detention Arrangements) Bill 2005 (Cth) states:

Ombudsman oversight of long term detainees

11.    The new Part 8C gives the Commonwealth Ombudsman a specific role reviewing the cases of persons who have been in immigration detention for more than two years. The Secretary will be required to provide to the Ombudsman a report on the detainee’s circumstances when the person has been detained for two years or more, and then every six months thereafter if the person is in detention at those times.

12.    The Ombudsman will be able to conduct appropriate inquiries on any issues arising from the Secretary’s report, and will have the same powers available to him as he has in relation to investigations under the Ombudsman Act 1976 such as the power to require the Department to furnish further information, answer questions (including under oath) and produce documents, and the power to enter the Department’s premises, including detention centres.

13.    The Ombudsman will then provide an assessment of the appropriateness of the person’s detention arrangements and any recommendations regarding a detainee to the Minister. While the Ombudsman’s recommendations will not be binding on the Minister, the Minister will be required to table a statement prepared by the Ombudsman as part of the assessment, including any recommendations from the Ombudsman. The statement will not contain material that the Ombudsman considers could not be tabled without adversely affecting the privacy of any person.

(Emphasis added.)

34    Counsel for the applicant was unable to assist the primary judge with how the applicant’s construction of the provisions in Part 8C on which he relied was consistent with the decision of the majority of the High Court in Commonwealth of Australia v AJL20 [2021] HCA 21; 273 CLR 43, in particular:

[51]    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.

[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. It is precisely because the hedging duties may be enforced so as to bring the detention of the unlawful non-citizen to an end that the executive detention authorised and required by ss 189 and 196 can be seen to be within the Parliament's power under s 51(xix) of the Constitution as limited by the implications of Ch III. These hedging duties are not things written in water. A failure on the part of the responsible officers of the Executive to comply with an order of the court mandating performance of their statutory duties may result in those officers being committed to prison for contempt of court. By this means, judicial power is exercised to give effect to the scheme of the Act, enforcing the supremacy of the Parliament over the Executive.

(Emphasis added.)

35    Both before the primary judge and before this Court, the applicant sought to rely on the decision of the United Kingdom Supreme Court in Shepherd Masimba Kambdzi v Secretary of State for the Home Department [2011] UKSC 23 in which the Supreme Court held that a failure to comply with Home Department’s policy for detention to be reviewed at regular intervals rendered his detention unlawful. Whilst the similarity in the factual circumstances is of some interest, the migration laws and the administrative laws of England and Wales differ in significant respects from those in this country. It is of no assistance in the present case.

36    To the extent that the applicant sought to advance an argument that the failure to comply with the provisions of Part 8C raised a serious question to be tried that his continuing detention under s 196 was unlawful, that submission must be rejected. As the High Court observed in relation to Part 8C in NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs [2023] HCA 37; 97 ALJR 1005 at [20]:

Not only had the Parliament refrained from altering the critical text of those provisions despite making numerous amendments to the Migration Act in the ten years which had then elapsed since Al-Kateb, but the Parliament had also, in 2005, inserted other provisions into the Migration Act which assumed the correctness of the construction of ss 189(1) and 196(1) adopted in Al-Kateb and which were designed to ameliorate the harshness of the operation of those provisions, so construed.

37    Leave to reopen the statutory construction holding in Al-Kateb v Godwin [2004] HCA 37; 219 CLR 562 was refused (NZYQ at [23]), albeit it did not survive the constitutional challenge.

38    It is apparent that the provisions of Part 8C are directed to no more than giving some visibility to members of the Parliament to long term detention, and do not affect the lawfulness of the applicant’s detention under s 196.

39    Further, there is no basis for impugning the primary judge’s exercise of discretion. The primary judge quite properly took into account that the applicant had apparently made a strategic decision not to make the originating application for habeas corpus and the associated application for the injunction, until after a prior application for an injunction, filed on 7 July 2023 and heard at 9.30am on the morning of 10 July by a different judge, had been determined: AKW22 July 2023 at [15].

40    The primary judge was also entitled to draw an inference from the ten published judgments relating to the applicant, as well as the applicant’s lawyer’s affidavit evidence that he had no extant proceedings relating to his visa status with all merits review and judicial review applications having been determined adversely to him, that there was a real risk that the grant of the injunction would frustrate the legislative scheme of the Migration Act: AKW22 July 2023 at [18]-[19].

41    No error of principle has been demonstrated. The primary judge satisfied himself that there was no serious question to be tried and that the balance of convenience did not favour the grant of the injunction, observing in particular that it is a fundamental principle that the Court should take whichever course appears to carry the lower risk of injustice: AKW22 July 2023 at [5], citing CPK20 at [15].

42    The application for leave to appeal from the dismissal of the first interlocutory injunction application must be refused.

The second interlocutory injunction application

43    The applicant was notified on 21 July 2023 that his removal was scheduled for 14 August 2023. The first attempt at his removal on 10 July 2023 was aborted because of his behaviour upon boarding the aircraft: AKW22 August 2023 at [15].

44    On Sunday 13 August 2023, the applicant filed a further application for an interlocutory injunction to restrain his removal from Australia, the day before the applicant was to be deported. The application for a writ of habeas corpus made on 7 July 2023 remained on foot.

45    The applicant was not able to advance any of the arguments that he had attempted to rely on in the first interlocutory injunction application. No additional submissions were made as to why non-compliance with Part 8C of the Migration Act might qualify or otherwise modify ss 189 and 198: AKW22 August 2023 at [26]. No additional evidence was adduced. In the circumstances, the primary judge concluded that there was no serious question to be tried: AKW22 August 2023 at [26].

46    The primary judge also rejected the applicant’s submission that the balance of convenience favoured the grant of the injunction: AKW22 August 2023 at [34]. There is no substance to the complaint that the primary judge’s discretion miscarried in this regard. The primary judge accepted that the refusal of injunctive relief meant that the applicant faced imminent deportation but said, at [34]:

… [t]his is a case where the broader picture of the legislative intention, a matter addressed directly by Mortimer J in CPK20, is to be given considerable weight when considering the balance of convenience. The applicant has had numerous opportunities to be heard in this Court as to his claims of unlawful detention … To my mind, to grant an injunction in the circumstances of this application, where habeas corpus has been requested and addressed previously [on three separate occasions], and where there is no new evidentiary ground for the allegations made, would undermine the public interests in the administration of the Migration Act, particularly where the applicant has exhausted all merits review and judicial review applications.

47    The decision of the primary judge is not attended by sufficient doubt to warrant reconsideration by a Full Court, nor will substantial injustice result if leave is refused. To the extent that Counsel for the applicant suggested that this Court would have power to order the applicant’s return to Australia by analogy with the reasoning of the House of Lords in In re M [1994] 1 AC 377, that submission must be rejected. There is no parity between the legislative scheme established by the Migration Act and the common law of the United Kingdom on which the House of Lords relied in regard to the particular factual circumstances of that case.

48    The application for leave to appeal from the dismissal of the second interlocutory injunction application must be refused.

Contempt

49    In respect of both decisions regarding the applications for interlocutory injunctions, the applicant contended that it would be contempt of the Court to remove a person under s 198 whilst there were habeas corpus proceedings pending. He relied on the decision in AWB Limited v Cole (No 4) [2006] FCA 1050 in which Young J said, at [8]:

Where the Court is considering an interlocutory injunction based on an apprehended contempt of Court, the Court asks whether the conduct poses a real risk of interfering with the processes of the Court or the administration of justice generally. As this question will only arise on the interlocutory application, and not at trial, the question is not normally posed in terms of a serious question to be tried. Rather, the question is whether the evidence establishes a real risk of interference.

50    In the circumstances of this case, there was no risk of interference with the processes of the Court. Those processes had already been invoked to seek habeas corpus. The relief was refused and an appeal to the Full Court dismissed. To the extent that Counsel for the applicant drew on the ancient Latin maxim, Fiat justitia ruat caelum – ‘Let justice be done though the Heavens fall’ – in support of the proposition that for so long as an unlawful non-citizen kept filing applications for a writ of habeas corpus, it would be contempt in the face of the Court to remove him pursuant to the statutory mandate in s 198(1) of the Migration Act, that submission must be rejected.

51    Further, both primary judges were well aware that the consequence of their refusal to grant the interlocutory injunctions was the removal of the applicant from Australia. It cannot be suggested that such removal was in anyway directed at frustrating or interfering with the processes of the Court. Again, to the extent that Counsel for the applicant suggested that the Court could not give its imprimatur to a breach of s 11 of the Habeas Corpus Act, for the reasons given above as to the applicability of that Act in the context of s 198 of the Migration Act, that submission must be rejected.

Disposition

52    For the reasons given, the applicant is granted an extension of time in which to seek leave to appeal in WAD114 of 2023, but is refused leave to appeal in each of WAD114 of 2023, WAD178 of 2023 and WAD217 of 2023. The applicant should pay the respondent’s costs of each application.

Associate:    

Dated:        1 March 2024