Federal Court of Australia
Secretary, Department of Home Affairs v CRS20 [2025] FCAFC 3
ORDERS
SECRETARY OF DEPARTMENT OF HOME AFFAIRS First Appellant MINISTER FOR HOME AFFAIRS Second Appellant | ||
AND: | Respondent | |
DATE OF ORDER: |
THE COURT ORDERS THAT:
1. The respondent’s objection to competency dated 15 July 2024 be dismissed.
2. The respondent’s interlocutory application dated 17 October 2024 be dismissed.
3. The appeal be dismissed.
4. Subject to paragraph 5 below:
(a) there be no order as to costs in relation to the respondent’s objection to competency and the respondent’s interlocutory application; and
(b) the appellants pay the respondent’s costs of the appeal.
5. If a party on either side seeks a different costs order, that party may within seven days file and serve a written submission (of no more than 3 pages) in relation to costs. In that event, any other party may within a further seven days file a responding written submission (of no more than 3 pages), and the issue of costs will be determined on the papers.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
THE COURT:
Introduction
1 In the proceeding at first instance, the respondent (CRS20) applied for a writ of habeas corpus on the basis of the judgment of the High Court of Australia in NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs [2023] HCA 37; 415 ALR 254 (NZYQ). The respondents at first instance were the Secretary of the Department of Home Affairs and the Minister for Home Affairs. For ease of expression, we will refer to them collectively as the Secretary.
2 CRS20 is a Faili Kurd of Shia Muslim faith. He was born in Iraq but grew up in Iran after being deported there as a young child. In 2012, CRS20 travelled to Australia by boat. He arrived in Australia on 22 September 2012 and is an “unauthorised maritime arrival” as that term is defined in s 5AA of the Migration Act 1958 (Cth). Upon his arrival, he was taken into immigration detention. For a time, CRS20 was at liberty in the Australian community as the holder of a bridging visa. However, that visa was cancelled in 2016, and CRS20’s application for a protection visa was later refused. Aside from some time on remand, CRS20 remained in immigration detention. CRS20 made a series of challenges to the refusal of his protection visa application, but subsequently sought to be removed from Australia. At the time of the hearing at first instance (in June 2024), the Department of Home Affairs had not succeeded in arranging the removal of CRS20 from Australia. For that reason, at the time of the hearing at first instance, CRS20 remained in immigration detention.
3 The hearing of the proceeding at first instance took place on 3-4 June 2024. On 12 June 2024, the primary judge published reasons for judgment and ordered that CRS20 be released from detention forthwith: CRS20 v Secretary, Department of Home Affairs [2024] FCA 619 (the Reasons). In summary, the primary judge held that:
(a) on the proper construction of the Migration Act, s 198AD rather than s 198 applied to CRS20 (accordingly, there was a requirement that CRS20 be taken to a regional processing country as soon as reasonably practicable); and
(b) the Secretary had not discharged her onus of showing that there existed a real prospect that removal of CRS20 to a regional processing country would become practicable in the reasonably foreseeable future.
4 In light of the conclusion that s 198AD (rather than s 198) applied to CRS20, it was not necessary for the primary judge to consider whether there was a prospect of removal of CRS20 to Iran or Iraq (the two countries to which removal had been considered) becoming practicable in the reasonably foreseeable future. However, for completeness, the primary judge considered that issue, concluding that, on the assumption that s 198 applied to CRS20, the Secretary had shown a real prospect of the removal of CRS20 to Iraq (but not Iran) becoming practicable in the reasonably foreseeable future.
5 CRS20 was released from immigration detention following the making of the primary judge’s orders. It was common ground at the hearing of the appeal that CRS20 has been issued with a Bridging Visa – Type R (or “BVR”) pursuant to reg 2.20(18) of the Migration Regulations 1994 (Cth).
6 Subsequently, on 18 June 2024, the primary judge ordered that the Secretary pay CRS20’s costs of the proceeding.
7 By notice of appeal dated 28 June 2024, the Secretary purports to appeal from the judgments of the primary judge. The notice of appeal sets out three grounds, but the third ground is not pressed. The two remaining grounds are, in summary:
(a) The primary judge erred in holding that s 198AD(1) applied to CRS20. The Secretary contends that, on its proper construction, s 198AD does not apply to a person who: has received a favourable exercise of the power in s 46A(2) of the Migration Act; and/or is a “fast track applicant” within the meaning of the Act (ground 1).
(b) In the alternative, assuming that s 198AD applies to CRS20, the primary judge erred in holding that CRS20 had discharged his evidential onus of proving that his detention was unlawful (ground 2).
8 The third ground of appeal, which is no longer pressed, challenged the primary judge’s finding that the Secretary had failed to prove that there was a real prospect of CRS20’s removal to a regional processing country becoming practicable in the reasonably foreseeable future. As that ground is no longer pressed, there is no challenge to that aspect of the primary judge’s judgment.
9 CRS20 has filed a notice of objection to competency dated 15 July 2024 by which he contends that no appeal lies to a Full Court of this Court in the present case. CRS20 submits, in summary, that in Wall v The King; ex parte King Won [1927] HCA 16; 39 CLR 245 (Wall v The King) the High Court held that no appeal lies from an order of a competent court for the issue of a writ of habeas corpus discharging a person from custody, unless a right of appeal is specifically given by the legislature. CRS20 submits that s 24 of the Federal Court of Australia Act 1976 (Cth) (being the provision conferring appellate jurisdiction on the Court) is expressed in general terms and therefore does not confer appellate jurisdiction in respect of an order for the issue of a writ of habeas corpus discharging a person from custody.
10 In the alternative, CRS20 contends that, if an appeal does lie, leave to appeal is required on the basis that the judgment of the primary judge was interlocutory in character.
11 CRS20 has filed a notice of contention dated 22 July 2024 by which he contends, in summary, that the primary judge erred by not concluding that the Secretary had failed to prove that there was a real prospect of the removal of CRS20 to Iraq becoming practicable in the reasonably foreseeable future.
12 CRS20 has filed an interlocutory application dated 17 October 2024 seeking an order that the Full Court receive further evidence on appeal. The further evidence is contained in an affidavit of Rachel Saravanamuthu, the solicitor acting for CRS20, dated 17 October 2024, and relates to a conversation with a staff member at the Iraqi embassy. The further evidence is solely related to CRS20’s notice of contention.
13 The hearing of the appeal was originally listed for one day. However, in advance of the hearing, the parties notified the Court that they considered that two hearing days would be required if the hearing were to deal with all issues. Accordingly, the listing was changed to two days. The hearing related to both the objection to competency and the appeal (if the objection to competency were dismissed).
14 The issues to be determined can be summarised as follows:
(a) whether an appeal lies to a Full Court of this Court from an order of a single judge of this Court for the issue of a writ of habeas corpus discharging a person from detention (the Objection to Competency Issue);
(b) if an appeal does lie, whether leave to appeal is required and, if so, whether leave should be granted (the Leave to Appeal Issue);
(c) whether the primary judge erred in concluding that s 198AD (rather than s 198) applied to CRS20 (the Section 198AD Issue);
(d) whether the primary judge erred in finding that CRS20 had discharged his evidential onus of proving that his detention was unlawful (the Evidential Onus Issue);
(e) whether the Full Court should receive further evidence on appeal (the Further Evidence on Appeal Issue); and
(f) whether the primary judge erred by not concluding that the Secretary had failed to prove that there was a real prospect of the removal of CRS20 to Iraq becoming practicable in the reasonably foreseeable future (the Notice of Contention Issue).
15 For the reasons that follow, we have concluded as follows:
(a) an appeal does lie to a Full Court of this Court from an order of a single judge of this Court for the issue of a writ of habeas corpus discharging a person from detention;
(b) leave to appeal is not required;
(c) the primary judge was correct to conclude that s 198AD rather than s 198 applied to CRS20;
(d) the primary judge did not err in finding that CRS20 had discharged his evidential onus of proving that his detention was unlawful;
(e) the application for the Court to receive further evidence should be dismissed; and
(f) in light of the conclusions summarised in (c) and (d) above, it is unnecessary to determine the Notice of Contention Issue.
Background Facts
16 The background facts are set out in the Reasons at [21]-[64]. It is sufficient for present purposes to note the following background facts (in addition to those set out above).
17 CRS20’s status as an unauthorised maritime arrival initially precluded him from making a valid application for a visa in Australia.
18 On 13 August 2015, the Minister determined to “lift the bar” pursuant to s 46A(2) of the Migration Act in relation to CRS20: Reasons, [25]. There was an issue below as to whether the Minister had made such a determination: Reasons, [202]. The primary judge found that the Minister had made such a determination: Reasons, [227]-[232]. This is not challenged in the appeal.
19 CRS20 was notified of the Minister’s determination to lift the bar by a letter from the Department dated 25 January 2016. The letter invited CRS20 to lodge an application for a protection visa.
20 On 11 April 2016, CRS20 lodged an application for a Safe Haven Enterprise Visa (Subclass 790) (SHEV): Reasons, [26].
21 On 19 September 2017, the Minister determined to revoke the relevant determination to lift the bar with effect from 1 October 2017: Reasons, [234]. However, by this date, CRS20 had already applied for a SHEV. The primary judge held at [235] that the revocation did not affect CRS20’s application for a visa, which had already been made. There is no issue on appeal about this.
22 On 19 October 2017, CRS20’s application for a SHEV was refused by a delegate of the Minister for Immigration and Border Protection: Reasons, [27]. CRS20 was a “fast track applicant” and therefore entitled to the review procedures in Pt 7AA of the Migration Act: Reasons, [235].
23 On 27 November 2017, the Immigration Assessment Authority affirmed the delegate’s decision: Reasons, [31]. CRS20 sought judicial review of the Authority’s decision in the Federal Circuit Court of Australia, but that Court dismissed his application. On appeal to the Full Court of this Court, CRS20 succeeded, the decision of the Authority was quashed, and the Authority was ordered to make the decision again according to law.
24 On 25 May 2020, the Authority again affirmed the delegate’s decision to refuse CRS20’s application for a SHEV: Reasons, [32]. That decision was set aside by the Federal Circuit and Family Court of Australia (Div 2) (Circuit Court), and the matter was remitted to the Authority for re-determination. The Minister appealed to this Court from the judgment of the Circuit Court, but that appeal was dismissed.
25 On 27 September 2022, the Authority once more affirmed the delegate’s refusal of CRS20’s application for a SHEV: Reasons, [33]. CRS20 sought judicial review of this third decision in the Circuit Court, but that Court dismissed his application on 24 May 2023.
26 From 5 July 2023 onwards, there was communication between CRS20’s solicitors and the Department or the Australian Border Force regarding potential removal of CRS20 to Iran: Reasons, [36]-[47]. In these communications, CRS20 requested voluntary removal from Australia to Iran.
27 On 8 November 2023, the High Court pronounced orders in NZYQ.
28 On 15 November 2023, CRS20’s solicitor wrote to the Australian Border Force referring to the High Court’s decision and claiming that CRS20’s detention may have been unlawful due to the fact that he could not be removed in the reasonably foreseeable future: Reasons, [41].
29 From 14 December 2023 onwards, steps were taken by the Department or the Australian Border Force, and there were communications between CRS20’s solicitors and the Department, regarding potential removal of CRS20 to Iraq: Reasons, [50]-[64].
The proceeding at first instance
30 On 19 February 2024, CRS20 commenced the proceeding at first instance. By the proceeding, CRS20 sought a writ of habeas corpus directing his release from immigration detention. This was the sole form of substantive relief he sought.
The Reasons
General matters
31 The primary judge noted, at [3] of the Reasons, that CRS20 submitted that his continuing detention was not authorised by ss 189(1) and 196(1) of the Migration Act and that he based that submission on the decision of the High Court in NZYQ. As the primary judge stated, in that case, the High Court held that: the constitutionally permissible period of executive detention of an alien who has failed to obtain permission to remain in Australia comes to an end when there is no real prospect of removal of the alien from Australia becoming practicable in the reasonably foreseeable future; and where this constitutionally permissible period would otherwise be exceeded, by reason of s 3A of the Migration Act, ss 189(1) and 196(1) do not apply, such that they do not authorise the continuing detention of the alien.
32 At [5] of the Reasons, the primary judge stated that the Court had jurisdiction in the matter under s 39B(1A) of the Judiciary Act 1903 (Cth). His Honour stated:
Its jurisdiction having been regularly invoked, the Court is clothed with the power to direct the issue of a writ of habeas corpus. Further, under s 23 of the Federal Court of Australia Act 1976 (Cth), it has power to make an order in the nature of habeas corpus, that is, an order of its own force without the procedural step that a writ issue: McHugh v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 223; 283 FCR 602 at [2] (Allsop CJ), [75] (Besanko J) and [188]–[248] (Mortimer J).
(Emphasis added.)
33 As this passage accepts, the Court has the power to direct the issue of a writ of habeas corpus or to make an order in the nature of habeas corpus. There is no issue on appeal about these matters. The order made by the primary judge was an order in the nature of habeas corpus, rather than an order for the issue of a writ of habeas corpus. The primary judge’s order was in the following terms: “The applicant [CRS20] be released from detention forthwith”. The procedural context in which the primary judge made an order in the nature of habeas corpus is explained at [67] of the Reasons (see below).
34 The primary judge explained at [18] of the Reasons that, after the Secretary had closed her evidentiary case, and during counsel for CRS20’s address on the substantive issues, counsel introduced two new issues, namely (a) the fitness of CRS20 to travel; and (b) the potential application of s 198AD of the Migration Act. It seems that, up until this point, the lawyers for both parties had proceeded on the basis that s 198 (rather than s 198AD) applied to CRS20 (although, confusingly, there are references to CRS20 being transferred to a regional processing country in certain documents provided by the Department to CRS20: see, eg, AB 1071). In view of the new issues, the Secretary and then CRS20 applied for leave to reopen their evidentiary cases, and this was granted: Reasons, [18]. The fitness to travel issue is not directly relevant for the purposes of the appeal.
35 The primary judge noted at [23] that CRS20’s nationality was a live issue in the proceeding at first instance. CRS20 claimed to be stateless – a citizen of neither Iraq nor Iran. The Secretary did not accept this and contended that the authorities in Iraq or Iran may recognise CRS20 as a citizen and thereby facilitate his removal from Australia in the reasonably foreseeable future.
36 At [65] of the Reasons and following, the primary judge outlined the issues. His Honour discussed the procedural setting at [66] and following. His Honour stated at [67]:
… the parties to this application proceeded on the basis that the hearing held on 3 and 4 June 2024 was the final hearing in this proceeding. There was no question of the Court making any conditional order, and so the issue for determination is the substantive issue of whether the detention of the applicant is authorised by law … If a writ of habeas corpus issues, or an order in the nature of habeas corpus is made in these circumstances, it will require the release of the applicant forthwith: see NZYQ at [74].
(Emphasis added.)
37 The primary judge discussed the substantive principles relating to the remedy of habeas corpus at [68]-[75] of the Reasons. This included a discussion of the judgment of the High Court in NZYQ.
38 In relation to the evidential burden on an applicant for a writ of habeas corpus, the primary judge stated at [74]:
In such an application for habeas corpus, it falls to the applicant to discharge an initial evidential burden of establishing that there is reason to suppose that his or her detention has ceased to be lawful by reason that it has transgressed the applicable constitutional limitation on his or her detention: NZYQ at [59] (The Court). If that initial evidential burden is discharged, the respondents bear the legal burden of proving that the constitutional limitation has not been transgressed: NZYQ at [59] (The Court).
(Emphasis added.)
39 The primary judge stated at [75]:
In this case, the [Secretary] conceded that [CRS20] had shown “probable cause” for the issue of a writ of habeas corpus. That acceptance was based on the facts that [CRS20] requested voluntary removal from Australia in July 2023, and that discussions with Iran and Iraq had not yet been successful in achieving the removal of [CRS20] from Australia. I understood this to be a concession on the part of the [Secretary] that [CRS20] had discharged the initial evidential burden of establishing that there is reason to suppose that his detention has ceased to be lawful by reason that it has transgressed the applicable constitutional limitation on his detention, as discussed by the High Court in NZYQ.
(Emphasis added.)
40 However, the above paragraph needs to be read with [148] of the Reasons (set out below), in which the primary judge discussed the context in which the concession was made, and the limits of the concession.
CRS20’s five points
41 The primary judge, at [83], set out five points made on behalf of CRS20:
At the hearing, counsel for [CRS20] submitted that there are five independent reasons why there is no real prospect of the removal of [CRS20] becoming practicable in the reasonably foreseeable future –
(1) [CRS20] is medically unfit to travel anywhere.
(2) [CRS20] has no valid travel document.
(3) There is a statutory preclusion arising from ss 196(1) and 198AD on the removal of [CRS20] anywhere other than a regional processing country — a category that does not include Iran or Iraq.
(4) There is no real prospect of the removal of [CRS20] to Iran becoming practicable in the reasonably foreseeable future.
(5) There is no real prospect of the removal of [CRS20] to Iraq becoming practicable in the reasonably foreseeable future.
42 The primary judge stated at [84] of the Reasons that he was persuaded by point (3). His Honour stated:
For reasons that I will explain, I am persuaded as to point (3), which is sufficient to give [CRS20] the relief which he seeks, because it has the supervening effect that, as matters stand, there is a legal preclusion on the removal of [CRS20] to Iran or Iraq, and there is otherwise insufficiently cogent evidence of a real prospect that the removal of [CRS20] to a regional processing country will become practicable in the reasonably foreseeable future.
43 However, to accommodate the possibility that the matter may go further, the primary judge stated that he would address the other matters that were advanced by CRS20 on the assumption that (contrary to his conclusion at [84]) s 198 rather than s 198AD applies to CRS20: Reasons, [85].
Removal to Iran or Iraq
44 At [86]-[188], the primary judge discussed the prospect of CRS20 being removed to Iran or Iraq on the assumption that s 198 applied to CRS20.
45 One of the matters considered in that section was the issue of fitness to travel. Relevantly for the purposes of ground 2 of the appeal (relating to the evidential onus on an applicant for habeas corpus), the primary judge stated at [148]:
… as I have explained, [CRS20] bears an evidentiary onus to put the lawfulness of his detention in issue. The [Secretary] conceded in [her] written submissions that [CRS20] had discharged that evidentiary onus. That concession must be understood in its context. The [Secretary] initially accepted that [CRS20] had discharged his onus before being made aware of the two significant developments in [CRS20’s] case, being the claim that [CRS20] is not fit to travel, and the reliance upon s 198AD of the Migration Act. I therefore do not treat the [Secretary’s] concession as extending to a concession that [CRS20] had shown there was some reason to doubt the lawfulness of his detention on the basis of his fitness to travel.
(Emphasis added.)
46 On the assumption that s 198 applied to CRS20, the primary judge concluded that the Secretary had not established that there was a real prospect of the removal of CRS20 to Iran becoming practicable in the reasonably foreseeable future: Reasons, [179].
47 On the assumption that s 198 applied to CRS20, the primary judge concluded that the Secretary had established that there was a real prospect of the removal of CRS20 to Iraq becoming practicable in the reasonably foreseeable future: Reasons, [187].
Section 198AD
48 At [189]-[280], the primary judge considered the issue whether s 198AD applied to CRS20. In summary, CRS20 contended that s 198AD applied to him, with the consequence that s 198 did not: see s 198(11). The Secretary contended that s 198AD did not apply to CRS20. The primary judge concluded that s 198AD did apply to CRS20.
49 Section 198AD provides in part as follows:
198AD Taking unauthorised maritime arrivals to a regional processing country
(1) Subject to sections 198AE, 198AF and 198AG, this section applies to an unauthorised maritime arrival who is detained under section 189.
Note: For when this section applies to a transitory person, see section 198AH.
(2) An officer must, as soon as reasonably practicable, take an unauthorised maritime arrival to whom this section applies from Australia to a regional processing country.
50 Section 198(11) provides:
This section does not apply to an unauthorised maritime arrival to whom section 198AD applies.
51 We will set out other relevant provisions later in these reasons.
52 Sections 198AE, 198AF and 198AG contain exceptions to the application of s 198AD. None of those exceptions were applicable: Reasons [221]-[223].
53 In the following passage, the primary judge explained the way in which the question whether s 198AD applied to CRS20 interacted with the other issues in the proceeding:
Contextualising the significance of s 198AD
192 To understand the significance of s 198AD to this application, the starting point is to recall that the ultimate question, in consequence of NZYQ, is whether there is a real prospect of the removal of [CRS20] from Australia becoming reasonably practicable in the reasonably foreseeable future. One reason why there may be no real prospect of such removal becoming practicable is that the Migration Act itself imposes a statutory preclusion on the removal of [CRS20]. In ASF17 [v Commonwealth [2024] HCA 19; 98 ALJR 782] at [35]–[38], the joint judgment made this point in relation to s 197C(3), which can operate to prevent the removal of a person to a country where there is an extant protection finding in respect of that country.
193 A similar result can also flow from s 198AD. To see why, it is necessary to start with s 196(1), which provides –
(1) 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.
194 In this way, s 196(1) specifies the duration of detention under s 189 by establishing four conditions that cause the obligation to detain under s 189 to end. The position under s 196(1) is that detention must continue until one of the specified conditions is met, subject to s 3A in light of the constitutional limitation recognised in NZYQ. These conditions include removal under s 198, as well as the fact of an officer beginning to deal with the non-citizen under s 198AD(3).
195 The present case was argued on the basis that the only paragraphs potentially relevant to the detention of [CRS20] were ss 196(1)(a)–(aa). These paragraphs deal with situations that are mutually exclusive. To see why, it is necessary to notice s 198(11) –
(11) This section does not apply to an unauthorised maritime arrival to whom section 198AD applies.
196 Because s 198 does not apply where s 198AD applies, an unlawful non-citizen in detention will only be capable of meeting one of s 196(1)(a) or (aa) at any given time.
197 The basis upon which the [Secretary] justified the lawfulness of [CRS20’s] detention was that it was authorised by ss 189(1) and 196(1) of the Migration Act. As I have explained, whether the detention is in fact authorised by those provisions turns on whether there is a real prospect of removal of [CRS20] becoming practicable in the reasonably foreseeable future. Before s 198AD was raised at the hearing, the only countries in respect of which the [Secretary] submitted the requisite real prospect existed were Iran and Iraq.
198 If s 198 applies to [CRS20], there is no statutory preclusion on removal of the applicant to Iran or Iraq. If s 198AD applies to [CRS20], however, s 198AD(2) imposes an obligation to take the applicant to a regional processing country. That section does not authorise the taking of [CRS20] anywhere else. By force of s 198(11), if s 198AD applies to [CRS20] then s 198 does not. And that means that the condition in s 196(1)(a) cannot be met — that is, the mandated duration of detention cannot reach its conclusion by the removal of [CRS20] under s 198. The effect is that if s 198AD applies, the detention of [CRS20] in this case can only end when s 196(1)(aa) is satisfied, and [CRS20] is in the process of being taken to a regional processing country.
199 For that reason, if s 198AD applies to [CRS20], the High Court’s holding in NZYQ requires that there be a real prospect of his removal to a regional processing country becoming practicable in the reasonably foreseeable future. Since neither Iran nor Iraq appears to be a regional processing country, it would then be irrelevant what the prospects of his removal to either of those countries would be: there would be a statutory preclusion on the removal of [CRS20] to either country. Thus, the lawfulness of [CRS20’s] detention would turn, in factual terms, on the prospects of removal of [CRS20] to a regional processing country, with Nauru and Papua New Guinea the two potential countries mentioned at the hearing.
(Emphasis added.)
54 As the emphasised parts of the above passage make clear, the primary judge approached the case on the basis that the High Court’s reasoning in NZYQ was also applicable to a person to whom s 198AD applies. In the context of s 198AD, the primary judge expressed the issue as being whether there is a real prospect of the removal of the person to a regional processing country becoming practicable in the reasonably foreseeable future.
55 As already noted, there was a dispute between the parties as to whether s 198AD applied to CRS20. The Secretary contended that, on the proper construction of the provisions, s 198AD did not apply to an unauthorised maritime arrival in respect of whom the Minister had made a determination under s 46A(2) to lift the bar. Given that such a determination had been made in respect of CRS20, the Secretary contended that s 198AD did not apply to him.
56 As the primary judge noted, different views had been expressed on that issue of statutory construction by Rangiah J at first instance in AZC20 v Minister for Home Affairs [2021] FCA 1234 (AZC20 FCA) and by the Full Court (Jagot, Mortimer and Abraham JJ) on appeal in Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v AZC20 [2022] FCAFC 52; 290 FCR 149 (AZC20 FCAFC). In brief terms, in AZC20 FCA Rangiah J held that s 198AD applied to an unauthorised maritime arrival in respect of whom the bar had been lifted under s 46A(2). In AZC20 FCAFC, the Full Court rejected that construction and held that s 198AD did not apply to (or operate in respect of) an unauthorised maritime arrival in respect of whom the bar had been lifted under s 46A(2).
57 As the primary judge noted at [238] of the Reasons, the orders of the Full Court in AZC20 FCAFC were set aside by the High Court, with the High Court by majority holding that there was no justiciable matter before the Full Court: AZC20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] HCA 26; 411 ALR 615 (AZC20 HCA). The primary judge noted at [252] that, upon the High Court setting aside the orders of the Full Court, the High Court ordered in their place that the applications for leave to appeal to the Full Court be refused, and that the appeals to the Full Court otherwise be dismissed. The primary judge stated that this had the result that the orders of the Full Court no longer had any legal effect, and the orders of Rangiah J constituted the applicable exercise of judicial power in the matter.
58 In these circumstances, the primary judge considered that the reasons of the Full Court in AZC20 FCAFC were not binding on him (albeit they were capable of being persuasive): Reasons, [254]. Further, the primary judge considered that he should follow the decision of Rangiah J unless he formed the view that it was plainly wrong: Reasons, [254].
59 For the reasons set out at [263]-[280], which included careful consideration of the Full Court’s reasoning, the primary judge was not persuaded that the decision of Rangiah J was plainly wrong. (We will refer to the primary judge’s reasons in more detail later in these reasons.) Accordingly, the primary judge concluded that s 198AD applied to an unauthorised maritime arrival such as CRS20 in respect of whom the bar had been lifted under s 46A(2).
60 At [281]-[282], the primary judge considered whether the Secretary had shown that there was a real prospect of removal of CRS20 to a regional processing country becoming practicable in the reasonably foreseeable future. His Honour reasoned as follows:
281 The [Secretary has] not discharged [her] onus of showing, to a standard sufficient to support the making of a finding of fact to the level of satisfaction appropriate to a civil proceeding where individual liberty is in issue, that there exists a real prospect of removal of [CRS20] to a regional processing country becoming practicable in the reasonably foreseeable future. The evidence on that topic is scant to non-existent. The reasons for that may be readily inferred: until last week, both [CRS20] and the [Secretary] proceeded on an assumption that s 198 is applicable to [CRS20]. There is no evidence as to why the executive did not consider itself bound by the decision of Rangiah J in AZC20 FCA. That issue need not be explored.
282 The constitutional limitation identified in NZYQ calls for an assessment in the present of the prospects of the removal of a person from Australia becoming practicable in the reasonably foreseeable future. The High Court in NZYQ at [72] recognised that facts may change, such that a person who has been released by force of a writ of habeas corpus may be re-detained if there arises again a real prospect of the removal of the person becoming practicable in the reasonably foreseeable future. The current position is that there is no evidence of the identity of one or more regional processing countries, and no evidence of any endeavours to transfer [CRS20] to one of those countries, or what prospects any such endeavours might have. On this evidence I do not have an affirmative state of satisfaction that there exists a real prospect of the transfer of [CRS20] under s 198AD becoming practicable in the reasonably foreseeable future, such that the continuing detention of [CRS20] is within the constitutionally permitted period of executive detention identified in NZYQ.
(Emphasis added.)
61 While ground 3 of the notice of appeal challenged the primary judge’s conclusion in the above passage, as noted above, that ground is no longer pressed.
62 The primary judge concluded, at [283], that an order that CRS20 be released from detention forthwith should be made. We consider this to be an order in the nature of habeas corpus.
Objection to Competency Issue
63 CRS20 raises as a threshold issue whether the appeal to the Full Court is competent. Relying in particular on Wall v The King, CRS20 submits that s 24 of the Federal Court of Australia Act is expressed in general terms and therefore does not confer appellate jurisdiction in respect of the issue of a writ of habeas corpus discharging a person from custody (or an order in the nature of habeas corpus).
64 Section 24 of the Federal Court of Australia Act relevantly provides as follows:
24 Appellate jurisdiction
(1) Subject to this section and to any other Act, whether passed before or after the commencement of this Act (including an Act by virtue of which any judgments referred to in this section are made final and conclusive or not subject to appeal), the Court has jurisdiction to hear and determine:
(a) appeals from judgments of the Court constituted by a single Judge exercising the original jurisdiction of the Court; …
…
(1A) An appeal shall not be brought from a judgment referred to in subsection (1) that is an interlocutory judgment unless the Court or a Judge gives leave to appeal.
(1B) Subsection (1A) is subject to subsection (1C).
(1C) Leave to appeal under subsection (1A) is not required for an appeal from a judgment referred to in subsection (1) that is an interlocutory judgment:
(a) affecting the liberty of an individual; …
65 The word “judgment” is defined in s 4 as follows (unless the contrary intention appears):
judgment means:
(a) a judgment, decree or order, whether final or interlocutory; or
(b) a sentence;
and includes a conviction.
66 Section 28 of the Federal Court of Australia Act provides in part:
28 Form of judgment on appeal
(1) Subject to any other Act, the Court may, in the exercise of its appellate jurisdiction:
(a) affirm, reverse or vary the judgment appealed from;
(b) give such judgment, or make such order, as, in all the circumstances, it thinks fit, or refuse to make an order;
(c) set aside the judgment appealed from, in whole or in part, and remit the proceeding to the court from which the appeal was brought for further hearing and determination, subject to such directions as the Court thinks fit; …
67 CRS20’s submissions, as set out in his outline of submissions, can be summarised as follows:
(a) In Wall v The King at 250-251, the High Court held that no appeal lies from an order of a competent court for the issue of a writ of habeas corpus discharging a detained person from custody, unless a right of appeal is specifically given by the legislature (the preclusion principle). That principle accords with history. The writ of habeas corpus is of “immemorial antiquity” (Secretary of State for Home Affairs v O’Brien [1923] AC 603 (O’Brien) at 609) and “if the writ is once directed to issue and discharge is ordered by a competent Court, no appeal lies to any superior Court”: O’Brien at 609-610.
(b) The rationale for the preclusion principle is, as stated in Re Bolton; Ex parte Beane [1987] HCA 12; 162 CLR 514 at 523 (Brennan J):
The law of this country is very jealous of any infringement of personal liberty (Cox v Hakes) and a statute or statutory instrument which purports to impair a right to personal liberty is interpreted, if possible, so as to respect that right …
(Footnote omitted.)
(c) The preclusion principle applies because this is an appeal wholly pursuant to statute under s 24 of the Federal Court of Australia Act (as opposed to the appellate jurisdiction under s 73 of the Constitution).
(d) In Thompson v Mastertouch TV Service Pty Ltd (No 3) (1978) 38 FLR 397 (Thompson v Mastertouch) at 412-414, the Full Federal Court held that the generality and breadth of s 24 did not specifically abrogate hallowed common law principles, and that s 24 did not allow an appeal from an acquittal. Deane J reasoned by analogy with the absence of any appeal from release upon the issue of habeas corpus: at 413-414. In Davern v Messel [1984] HCA 34; 155 CLR 21 at 32-33, 46-54 and 63, the High Court approved Thompson.
(e) Preclusion of appeal in the absence of an express statutory provision is consistent with the history of habeas corpus as “perhaps the most important writ known to the constitutional law of England, affording as it does a swift and imperative remedy in all cases of illegal restraint or confinement”: O’Brien at 609. This is a history which the Australian colonies and then the States and Commonwealth share, without alteration except by express enactment.
(f) Further, the preclusion principle is a means by which the Court acts as a safeguard of individual liberty in accordance with its function under the Constitution (Minister for Home Affairs v Benbrika [2021] HCA 4; 272 CLR 68 at [67]), and as part of the law and practice of habeas corpus, forms part of one of the defining characteristics of the supervisory role of all superior Courts: Kirk v Industrial Court (NSW) [2010] HCA 1; 239 CLR 531 at [98]-[99]. Thus, at the time of Federation, the preclusion of appeal was a recognised feature of habeas corpus, then-recently restated by the House of Lords in Cox v Hakes (1890) 15 App Cas 506.
(g) If Ruddock v Vadarlis [2001] FCA 1329; 110 FCR 491 and Commonwealth v AJL20 [2021] HCA 21; 273 CLR 43 (AJL20) are said to stand against the preclusion principle, they can be distinguished or should be treated as decided per incuriam. While both cases were appeals pursuant to s 24 of the Federal Court of Australia Act, in neither case was the issue of competence referred to in argument or decision. AJL20 was removed into the High Court pursuant to s 40 of the Judiciary Act 1903 (Cth), but against two separate decisions, including one for damages for false imprisonment.
(h) Nothing turns on the primary judge using modern, plain English in his order 1 – “[t]he applicant be released from detention forthwith” – in place of the Latin phrase. This is so for reasons including that “[t]he Court’s consideration should be confined to the proposals for relief put forward by the [moving party]” (McHugh v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (No 2) [2021] FCAFC 152; 287 FCR 364 at [85], with agreement at [1] and [3]) and CRS20 sought the writ of habeas corpus. The preclusion principle is concerned with the substance, not the form, of the order restoring liberty.
68 We will now consider the main cases relied on by CRS20.
69 The background facts of Wall v The King, decided by the High Court in 1927, were as follows. On 25 May 1926, Alfred Wall (the Informant) swore informations charging King Won and Wah On respectively with being prohibited immigrants within the meaning of the Immigration Act 1901-1925 (Cth). On 26 May, the informations came on for hearing at Darwin before a Special Magistrate; the matters were adjourned until 28 July and the defendants were discharged on recognisances to appear at the adjourned hearing. On 5 July, the sureties took the defendants before the Special Magistrate, who discharged the sureties and recognisances and committed the defendants to the custody of the keeper of the Darwin Gaol until 28 July. On 16 July, applications were made to the Supreme Court of the Northern Territory for orders nisi for the issue of a writ of habeas corpus directed to the keeper of the gaol to have the body of each defendant brought before the Supreme Court. On the same day, the orders nisi were issued. On 26 July, the orders nisi came on for hearing before Roberts J, who made them absolute and ordered the discharge from custody of both defendants. The reason stated by Roberts J was that neither of the defendants was an immigrant within the meaning of the Immigration Act 1901-1925 (Cth) and therefore the Special Magistrate had no jurisdiction to try them or to hold them pending trial. From the decision in each case, the Informant, by leave, appealed to the High Court. King Won and Wah On (the respondents in the High Court), by way of preliminary objection, contended that an appeal did not lie to the High Court from such an order.
70 The key relevant provision was s 21 of the Supreme Court Ordinance 1911-1922 (NT), which was in the following terms (see the judgment of Higgins J at 262):
The Full Court of the High Court of Australia, constituted by at least two Judges, may grant leave to appeal to the High Court of Australia from any conviction, sentence, judgment, decree, or order of the Supreme Court of the Northern Territory, including any order or direction made by the Judge of the Northern Territory whether in Chambers or in Court and including also any refusal of such Judge to make any order.
71 The High Court, by a majority (Knox CJ, Gavan Duffy, Powers, Rich and Starke JJ; Isaacs and Higgins JJ dissenting), upheld the preliminary objection. The Court therefore rescinded leave to appeal and struck out the appeals. A joint judgment was delivered by the majority. After setting out the background facts, the majority stated (at 250):
An appeal is now brought to this Court from the order of the Supreme Court, and the respondent, by way of preliminary objection, has argued that an appeal does not lie to this Court from such an order. A recent case in the House of Lords, Secretary of State for Home Affairs v O’Brien [[1923] AC 603], in which the previous authorities are cited and examined, establishes the proposition that, according to the law of England, no appeal lies from an order of a competent Court for the issue of a writ of habeas corpus discharging a prisoner from custody unless an appeal is specifically given by the Legislature, and that the Courts should not hold that such an appeal is given merely because of general words in their natural meaning sufficient for such a purpose. By virtue of the Supreme Court Ordinance 1911, as amended by Ordinance No. 10 of 1922, appeal from the Supreme Court of the Northern Territory to this Court will lie by leave of this Court from any conviction, sentence, judgment, decree or order of the Supreme Court of the Northern Territory, whether in Chambers or in Court, including also any refusal of such Judge to make any order (Porter v The King [(1926) 37 CLR 432]). Applying to the present case the rule laid down by the House of Lords, we think we are bound to say, in the words of the Earl of Birkenhead LC, that an enactment couched in terms so general does not avail to deprive the subject of an ancient and universally recognized constitutional right.
(Emphasis added.)
72 The majority then rejected an argument put forward by the Informant, relying on a Privy Council decision (United States of America v Gaynor [1905] AC 128), that the rule did not exist. In rejecting that argument, the majority noted that the Privy Council had given leave to appeal and no report had been provided of the proceedings in which leave was given. The majority noted that, on the appeal itself, no argument was made with respect to the validity of the appeal. The majority also stated (at 250):
It may very well be too, that the right of appeal to the Privy Council by special leave is by its very nature outside the rule laid down in O’Brien’s Case, but it is unnecessary to discuss that question further.
73 The majority next referred to an argument put forward by the Informant based on the judgment of the High Court in Attorney-General (Commonwealth) v Ah Sheung [1906] HCA 44; 4 CLR 949 (Ah Sheung). In that case, the High Court accepted that it had jurisdiction (pursuant to s 73 of the Constitution) to hear an appeal from an order of a State Supreme Court discharging a person from custody on the return of a writ of habeas corpus. In Ah Sheung, the High Court (in a joint judgment of the Court delivered by Griffith CJ) stated (at 951):
We have no doubt as to the jurisdiction of the High Court to entertain this appeal. The jurisdiction conferred by the Constitution extends to all decisions of the Supreme Courts of the States with such exceptions as may be made by Parliament, and no exception is made by the Judiciary Act in cases of habeas corpus.
74 In Wall v The King, the majority distinguished Ah Sheung on the following basis (at 250-251):
In the next place the appellant relied on a case in this Court, Attorney-General v Ah Sheung [(1906) 4 CLR 949]. This case was followed without argument in Lloyd v Wallach [(1915) 20 CLR 299], and approved of by our brother Isaacs in subsequent cases, but that approval rested on the nature and function of the Constitution of the Commonwealth. It is enough to say that Ah Sheung’s Case dealt with the judicial power of this Court under Chapter III of the Constitution, and with that power only.
(Emphasis added.)
75 The majority then dealt with an alternative argument of the Informant that, in this case, the Supreme Court of the Northern Territory was not a competent court within the meaning of the rule. The majority rejected this argument (at 251-252). In summary, the majority held that the Supreme Court of the Northern Territory had authority to make the order that it made; it had jurisdiction to come to a right or wrong conclusion on the questions submitted to it for determination.
76 In dissent, Isaacs J accepted the general rule relied on by the majority, stating (at 253):
Constitutional considerations and principles are of the utmost relevance in construing legislative instruments and, when these are taken into account and applied to the general language of sec 21 [of the Supreme Court Ordinance 1911-1922 (NT)], I am constrained to follow the precedents of Cox v Hakes [(1890) 15 App Cas 506] and O’Brien’s Case [[1923] AC 603] by holding that the general words of sec 21 do not include an appeal from the determination of a competent Court upon habeas that a person was entitled to be liberated. I refer to O’Brien’s Case, per Lord Birkenhead [at pp 609, 610], per Lord Dunedin [at pp 620, 621], per Lord Shaw [at pp 640, 641]; together with the various passages adopted from Cox v Hakes.
77 However, Isaacs J held that the Supreme Court of the Northern Territory was not a “competent Court” (within the meaning of the rule) to make the order that it made. This was because a statute conferred on the Darwin Summary Jurisdiction Court exclusive jurisdiction to determine whether the respondents were prohibited immigrants (at 252-253, 254). Isaacs J would have overruled the preliminary objection in each case.
78 Higgins J, also in dissent, considered that the High Court had jurisdiction to entertain the appeal pursuant to s 73 of the Constitution on the basis that the Supreme Court of the Northern Territory was exercising federal jurisdiction (at 261-262). Higgins J also held that, even if the High Court were obliged to follow the principle expressed by the House of Lords in O’Brien and Cox v Hakes, the order made by the Judge of the Supreme Court of the Northern Territory was made without jurisdiction (at 263). Higgins J would have ordered that the appeal be allowed and the order set aside.
79 The following observations may be made about Wall v The King:
(a) While the majority (and Isaacs J) affirmed the principle expressed by the House of Lords in O’Brien, the question to be determined in any given case is ultimately one of statutory construction. The conclusion reached with respect to s 21 of the Supreme Court Ordinance 1911-1922 (NT) will not necessarily apply to other appeal provisions, having regard to the text of those provisions read in context.
(b) The majority in Wall v The King did not question, and indeed accepted the correctness of, Ah Sheung, in which the High Court held that the High Court had jurisdiction under s 73 of the Constitution to hear an appeal from an order of a State Supreme Court discharging a person from custody on return of a writ of habeas corpus. Lloyd v Wallach [1915] HCA 60; 20 CLR 299 is another example of the High Court hearing such an appeal, albeit without express consideration of the issue of jurisdiction. Thus, in the Australian context, appeals of this nature were not non-existent; they could be brought to the High Court under s 73 of the Constitution.
80 We now turn to Thompson v Mastertouch, a decision of the Full Court of this Court (Smithers, Riley and Deane JJ) handed down in 1978. This case involved the criminal law rather than the issue of a writ of habeas corpus. On the information of the appellant (Thompson), who was an officer of the Trade Practices Commission, the respondent (Mastertouch) was charged with an offence under s 79 of the Trade Practices Act 1974 (Cth). The charge was heard by Franki J in the exercise of the Court’s original jurisdiction. His Honour found that Thompson had failed to prove the offence and dismissed the information. Thompson purported to appeal as of right from the judgment of Franki J. At the commencement of the appeal, Mastertouch contended that the Full Court lacked jurisdiction. Full argument then took place on the question of jurisdiction. At the conclusion of argument on that question, the Full Court indicated that the Court had reached the conclusion that the objection to jurisdiction was well based, and therefore the Court did not wish to hear argument on the merits of the appeal. The Court indicated that it would subsequently publish reasons for its decision.
81 The main judgment was delivered by Deane J, with whose reasons Smithers J and Riley J agreed. Deane J recorded (at 400) that it was common ground that the only potential source of jurisdiction was s 24 of the Federal Court of Australia Act. Section 24(1)(a) was in substantially the same terms as in force today (set out above). Deane J summarised Mastertouch’s contention at 401:
In support of its submission that the appeal was not competent, the respondent sought to rely on what it claimed to be a well-established principle of the common law, namely, that there should be no appeal from a judgment of acquittal pronounced in criminal proceedings by a court of competent jurisdiction after a hearing on the merits. It was submitted that the alleged principle was fundamental to the administration of criminal justice and that legislation should only be construed as involving a departure from it if, and to the extent that, such a departure was the result of express and unambiguous words.
82 After considering English and Irish cases that supported the general principle of there being no appeal from a judgment of acquittal, Deane J examined the Australian context, including decisions of the High Court in relation to s 73 of the Constitution. On the basis of that survey, it was not possible, in Australia, to accord the principle of there being no appeal from a judgment of acquittal the universality expressed in some of the English cases (at 407). Deane J stated the applicable principle of construction in the following terms (at 408-409):
It is a well-established principle of construction that a statute is not to be taken as effecting a fundamental alteration in the general law or as abolishing or modifying fundamental common law rights unless it uses words that point clearly and unambiguously to that conclusion. This principle has been recognized in many cases including cases in the High Court of Australia (see, for example, Potter v Minahan; Bishop v Chung Bros; Commonwealth and the Postmaster-General v Progress Advertising & Press Agency Co Pty Ltd; Wall v The King; Ex parte King Won and Wah On; Melbourne Corporation v Barry; and see generally Maxwell on Interpretation of Statutes, 12th ed, p 116ff., and the cases there cited).
(Footnotes omitted.)
83 Today, this principle is often referred to as the “principle of legality”: see, eg, Al-Kateb v Godwin [2004] HCA 37; 219 CLR 562 at [19] per Gleeson CJ; Electrolux Home Products Pty Ltd v Australian Workers’ Union [2004] HCA 40; 221 CLR 309 at [21] per Gleeson CJ; Lee v NSW Crime Commission [2013] HCA 39; 251 CLR 196 at [29] per French CJ, at [171]-[173] per Kiefel J, at [307]-[312] per Gageler and Keane JJ.
84 In Thompson v Mastertouch, Deane J considered that s 24 of the Federal Court of Australia Act was of a different character to s 73 of the Constitution, and therefore the same approach was not applicable (at 411). Deane J stated that, moreover, the word “all”, which appears before the words “judgments, decrees, orders and sentences” in s 73, and emphasises the unrestricted nature of the jurisdiction conferred by s 73, finds no corresponding place in s 24.
85 At 412, Deane J expressed his conclusion that, on their proper construction, the provisions of s 24(1)(a) and (b) of the Federal Court of Australia Act did not confer jurisdiction to hear, or authority to institute, an appeal against a judgment of acquittal. The following passage encapsulates his Honour’s core reasoning (at 412-413):
An appeal, as of right, from a judgment of acquittal pronounced by a superior court is not a recognized part of the appellate process in the administration of criminal law. The existence of such an appeal is contrary to a fundamental principle of the common law. There is no relevant legislative precedent for the Crown or other prosecutor being given authority as of right to institute or maintain such an appeal. As has been mentioned, it is a well-established principle of statutory interpretation that a statute is not to be taken as effecting a fundamental alteration in the general law or abolishing or modifying fundamental common law rights unless it uses words that point clearly and unambiguously to that conclusion. Applying that principle of construction to the present case, I consider that the conclusion is unavoidable that the general words used in s 24 (1)(a) and (b) to confer jurisdiction “to hear and determine appeals” do not confer jurisdiction to hear and determine appeals in circumstances where the existence of the jurisdiction and the right to invoke it would be contrary to a fundamental principle relating to the circumstances in which an appeal should exist. The right of the subject which finds expression in that principle, namely, the right to be spared the jeopardy of an appeal from an acquittal after a hearing on the merits of a criminal charge by a court of competent jurisdiction, is not, upon proper principles of statutory interpretation, to be swept aside by the general terms of a statute which has no underlying policy requiring that such terms be given such an effect and which contains nothing that points clearly or unmistakably or, indeed, at all, to that effect as having been either contemplated or intended.
(Emphasis added.)
86 After that passage, Deane J referred to Wall v The King, stating that “[t]he considerations relevant to the determination of the present matter are, in my view, essentially the same as those recognized in the following extract from the judgment of Knox CJ, [Gavan] Duffy, Powers, Rich and Starke JJ in Wall v The King; Ex parte King Won and Wah On”. Deane J then set out a passage from the majority judgment in Wall v The King at 250 (set out earlier in these reasons). Deane J then stated:
The common law principle and the common law right under consideration in the present matter are at least as well established in Australia as the principle and right in question in that case. Indeed, as has been seen, Dixon CJ seemed to assimilate the two principles to some extent when, in The King v Wilkes, he treated Lloyd v Wallach and O’Brien’s case as being in point to the principle of no appeal from a judgment of acquittal. The words of s 24 of the Federal Court of Australia Act are every bit as general and lacking in express reference as the words of s 21 of the Supreme Court Ordinance (1911-1922) (NT) there under consideration. The decision of the High Court in that case clearly supports the conclusion that the general words of s 24 of the Federal Court of Australia Act confer neither jurisdiction upon this Court to hear, nor authority upon the appellant to institute, this appeal.
(Footnotes omitted; emphasis added.)
87 We make the following observations about Thompson v Mastertouch:
(a) The issue in the case (whether a right of appeal lay from a judgment of acquittal in a criminal proceeding) was different from the issue in the present case, which concerns habeas corpus. Accordingly, the case is not binding in relation to the present issue.
(b) Deane J relied on the decision of the High Court in Wall v The King in support of his conclusion. Evidently, Deane J considered that the holding in Wall v The King would apply equally to s 24 of the Federal Court of Australia Act. However, there was no issue in Thompson v Mastertouch as to whether the appellate jurisdiction of this Court under s 24 of the Federal Court of Australia Act encompasses an appeal from an order discharging a person on the return of a writ of habeas corpus. Unsurprisingly, in these circumstances, the judgment of Deane J contains no detailed consideration of the merits of that issue. It is unclear whether the parties made submissions on that issue. In light of these matters, the judgment is of limited persuasive value in relation to the issue of present concern.
(c) While Thompson v Mastertouch was approved by the High Court in Davern v Messel by Gibbs CJ (with whom Wilson and Dawson JJ agreed) at 32-33 and by Mason and Brennan JJ at 55-56, that approval concerned the question whether there was a right of appeal against a judgment of acquittal in criminal proceedings; it did not relate to the observations made in Thompson v Mastertouch about habeas corpus.
88 In our view, having regard to general principles of statutory construction including the principle of legality, and the cases discussed above, the appellate jurisdiction of this Court conferred by s 24 of the Federal Court of Australia Act is sufficiently wide to encompass an appeal from the issue of a writ of habeas corpus discharging a person from custody (or an order in the nature of habeas corpus).
89 There is no real issue that, on its face, the words of the section are sufficient to encompass such an appeal. The word “judgments” is broadly defined as meaning (among other things) “a judgment, decree or order, whether final or interlocutory”. The real issue is whether the principle in Wall v The King (which may be an aspect of the principle of legality) applies, such that the general words of s 24 do not confer jurisdiction in respect of an appeal from the issue of a writ of habeas corpus discharging a person from custody.
90 The principle in Wall v The King may be stated as: a general conferral of appellate jurisdiction is usually insufficient to confer jurisdiction to entertain an appeal in respect of the issue of a writ of habeas corpus discharging a person from custody (or an order in the nature of habeas corpus). However, the question is ultimately one of statutory construction having regard to the text and context of the provision under consideration. Here, the context of s 24 of the Federal Court of Australia Act includes s 33 of that Act, which provides in part:
33 Appeals to High Court
(1) The jurisdiction of the High Court to hear and determine appeals from judgments of the Court, whether in civil or criminal matters, is subject to the exceptions and regulations prescribed by this section.
(2) Except as otherwise provided by another Act, an appeal shall not be brought to the High Court from a judgment of the Court constituted by a single Judge exercising the original jurisdiction of the Court.
(3) Except as otherwise provided by another Act, an appeal shall not be brought from a judgment of a Full Court of the Court unless the High Court gives special leave to appeal.
(4) An appeal must not be brought from a judgment of the Court constituted by a single Judge exercising the appellate jurisdiction of the Court unless the High Court gives special leave to appeal.
(4A) An appeal must not be brought to the High Court from a judgment of a Full Court of the Court exercising the original jurisdiction of the Court if the judgment is:
(a) a determination of an application of the kind mentioned in subsection 20(3); or
(b) a decision to do, or not to do, any of the following:
(i) join or remove a party;
(ii) adjourn or expedite a hearing;
(iii) vacate a hearing date.
(4B) An appeal must not be brought to the High Court from a judgment of the Court (whether constituted by a Full Court or a single Judge) in the exercise of its appellate jurisdiction if the judgment is:
(a) a determination of an application of the kind mentioned in subsection 25(2); or
(c) an order under section 29; or
(d) a decision to do, or not to do, any of the following:
(i) join or remove a party;
(ii) grant leave to defend a proceeding;
(iii) reinstate an appeal that was taken to have been abandoned or dismissed;
(iv) extend the time for making an application for leave to appeal;
(v) adjourn or expedite a hearing;
(vi) vacate a hearing date.
…
(Emphasis added.)
91 The reference in s 33(1) to “exceptions” and “regulations” picks up the language of s 73 of the Constitution. The effect of s 33(2) is that an appeal cannot be brought to the High Court from an order of a single Judge of this Court in the exercise of original jurisdiction, including the issue of a writ of habeas corpus discharging a person from custody. If an appeal to a Full Court of this Court is available under s 24, then an appeal from the judgment of the Full Court could be brought (with special leave) to the High Court. However, if an appeal to a Full Court is not available, then the order of the single judge could not be the subject of an appeal to the High Court. In our view, in a context where previously (as we have seen) appeals from such orders of other courts exercising original jurisdiction could be the subject of appeals to the High Court, it would be surprising if Parliament intended that orders of the same kind could not, when made by the Federal Court, be the subject of an appeal to the High Court. This factor militates in favour of a construction of s 24 that encompasses appeals from orders of a single Judge for the issue of a writ of habeas corpus discharging a person from custody. It also provides a basis to distinguish Wall v The King; the statutory context in the present case is different.
92 Further, if CRS20’s construction were correct, there could be no scrutiny by a Full Court of important questions of statutory construction that may arise in a case in which a single Judge has made an order for the issue of a writ of habeas corpus discharging a person. (The present case is an example of the important issues of statutory construction that may arise.) It is unlikely that this was intended by Parliament.
93 The construction that we favour coheres with the position that s 23 of the Federal Court of Australia Act is the source of the power both to issue a writ of habeas corpus and to make an order in the nature of habeas corpus: McHugh v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 223; 283 FCR 602 (McHugh (No 1)) at [20]-[23] per Allsop CJ, [75] per Besanko J, [187], [199]-[201], [211]-[214] per Mortimer J. That being so, it is natural that an appeal against habeas corpus would be subject to the same principles that govern appeals against other orders made under s 23.
94 While not necessary for our decision, we note that this conclusion is consistent with the fact that in Ruddock v Vadarlis a Full Court of this Court (Black CJ, Beaumont and French JJ) heard (and allowed) an appeal from an order of a single Judge in the nature of habeas corpus discharging persons from custody. While the case is not an authority on the issue under present consideration (because no objection was made to the competency of the Full Court to hear the appeal), it is noteworthy that the Full Court (comprising the then Chief Justice of the Court and a future Chief Justice of the High Court of Australia) heard (and allowed) the appeal without referring in the judgments to any issue about the jurisdiction of the Full Court to entertain the appeal. Contrary to a submission made by CRS20, we do not consider the fact that North J at first instance stayed his orders pending the determination of the appeal to provide a point of distinction.
95 We also note that the Secretary submitted that it would be problematic if there were no appeal from an order of a single Judge to issue a writ of habeas corpus discharging a person from custody, but the judgment still operated as an issue estoppel between the parties in subsequent proceedings (eg, a proceeding in which damages were sought for false imprisonment). We do not consider it necessary to determine this point in order to resolve the issue of construction.
96 For these reasons, we reject the objection to the competency of the appeal.
Leave to Appeal Issue
97 The next issue is whether, as contended by CRS20 in the alternative, leave to appeal is required on the basis that the decision of the primary judge was interlocutory in character: see s 24(1A) of the Federal Court of Australia Act (set out above). We will first address that contention, and then refer to s 24(1C) (also set out above).
98 CRS20 submits that: habeas corpus is “interlocutory in character” (McHugh (No 1) at [21] per Allsop CJ, at [75] per Besanko J, at [199] per Mortimer J); it has been described by the High Court as a “speedy and summary interposition” (R v Murray and Cormie; Ex parte the Commonwealth [1916] HCA 58; 22 CLR 437 at 459); this reflects its origins, including as a method by which to apply for bail (Al-Kateb v Godwin at [26]); from medieval times, habeas corpus “simply represented a command, issued as a means of interlocutory process, to have the defendant to an action brought physically before the court” (Farbey, J, et al, The Law of Habeas Corpus (2011, Oxford University Press, UK) p 2); that is, the prevailing view is that it is interlocutory and that view is rooted in its history.
99 CRS20 submits that: when one assesses the qualities of habeas corpus, the result is the same; habeas corpus does not lead to an order which finally determines the rights of the parties, which is the usual test for determining whether an order is final or interlocutory (Kowalski v MMAL Staff Superannuation Fund Pty Ltd [2009] FCAFC 117; 178 FCR 401 (Kowalski) at [33]); the writ has a twofold quality where “if favourable to liberty, it was without appeal, and if unfavourable it might be renewed until each jurisdiction had in turn been exhausted” (Cox v Hakes at 514).
100 CRS20 submits that: the orders and facts of the present appeal illustrate the point; the order for release by the primary judge required and effected release of CRS20 “forthwith”; the orders were spent on their performance; as the High Court made plain in NZYQ at [72], an order for CRS20’s release gave him no right to liberty finally nor indefinitely; that CRS20 continues to enjoy his liberty is because the Minister has now granted him a visa; in these ways, the release order was of only momentary significance.
101 In our view, the order made by the primary judge was final in character.
102 The applicable principles were stated by Spender, Graham and Gilmour JJ in Kowalski at [33]:
The usual test for determining whether an order is final or interlocutory is whether the order, as made, finally determines the rights of the parties in a principal cause pending between them. That question is answered by determining whether the legal effect of the judgment is final or not. If the legal effect of the judgment is final, it is a final order; otherwise it is an interlocutory order (see per McHugh ACJ, Gummow and Heydon JJ in Re Luck (2003) 78 ALJR 177; 203 ALR 1 at [4]; see also Port of Melbourne Authority v Anshun Pty Ltd (1980) 147 CLR 35 (Anshun No 1) at 38).
103 We accept that, in some circumstances, an order for the issue of a writ of habeas corpus may be interlocutory in character: see, eg, McHugh (No 1) at [21] per Allsop CJ (a paragraph in respect of which Besanko J agreed at [75] and Mortimer J agreed at [199]). However, it does not follow that the issue of a writ of habeas corpus (or an order in the nature of habeas corpus) will always have that character. Much will depend on the procedural course adopted by the parties and the Court. In the present case, as noted by the primary judge at [67] of the Reasons (see above), the parties proceeded on the basis that the hearing held on 3 and 4 June 2024 was the final hearing of the proceeding; there was no question of the Court making any conditional order. The only substantive relief sought in the proceeding was the issue of a writ of habeas corpus. The primary judge in substance granted that relief, making an order that CRS20 be released from detention forthwith. In these circumstances, in our view, the order finally determined the rights of the parties in respect of the issue raised by the proceeding, namely whether the detention was lawful. It was therefore final in character, with the consequence that leave to appeal is not required.
104 In light of that conclusion, it is unnecessary to consider s 24(1C). As set out above, that section provides that “[l]eave to appeal under subsection (1A) is not required for an appeal from a judgment referred to in subsection (1) that is an interlocutory judgment: … affecting the liberty of an individual”. If (contrary to the above conclusion) the order made by the primary judge was interlocutory in character, it was a judgment affecting the liberty of CRS20, and therefore covered by s 24(1C). Accordingly, leave to appeal would not be required.
Section 198AD Issue
105 We now turn to the issues raised by the appeal. The first issue, raised by ground 1, is whether the primary judge erred in concluding that s 198AD (rather than s 198) applied to CRS20. This turns on an issue of statutory construction.
106 The Secretary contends that, on its proper construction, s 198AD(1) does not apply to a person who:
(a) has received a favourable exercise of the power in s 46A(2) of the Migration Act; or
(b) further or alternatively, is a “fast track applicant” within the meaning of the Act.
107 CRS20 contends that the primary judge’s construction of s 198AD(1) was correct.
Key relevant provisions
108 We set out below the key relevant provisions as they appeared in the compilation of the Migration Act prepared as at 29 March 2024. This was the latest compilation at the date of the judgment of the primary judge. For ease of expression, we will refer to those provisions as though they were still in force, but we note that some of the provisions (in particular, the definition of “fast track applicant” and Pt 7AA) have since been removed from the Act.
109 The expression “unauthorised maritime arrival” is defined in s 5AA. It is unnecessary to set out the definition as the primary judge found (at [218]) that CRS20 is an unauthorised maritime arrival and there is no issue about this on appeal.
110 The expression “fast track applicant” is defined in s 5(1) as meaning:
(a) a person:
(i) who is an unauthorised maritime arrival and who entered Australia on or after 13 August 2012, but before 1 January 2014, and who has not been taken to a regional processing country; and
(ii) to whom the Minister has given a written notice under subsection 46A(2) determining that subsection 46A(1) does not apply to an application by the person for a protection visa; and
(iii) who has made a valid application for a protection visa in accordance with the determination; or
(b) a person who is, or who is included in a class of persons who are, specified by legislative instrument made under paragraph (1AA)(b).
111 In the present case, there does not appear to be any issue that, at the relevant times, CRS20 was a “fast track applicant” within the meaning of para (a) of the above definition. As noted above, following the lifting of the bar under s 46A(2), CRS20 applied for a SHEV.
112 Section 46A provides in part:
46A Visa applications by unauthorised maritime arrivals
(1) An application for a visa is not a valid application if it is made by an unauthorised maritime arrival who:
(a) is in Australia; and
(b) either:
(i) is an unlawful non-citizen; or
(ii) holds a bridging visa or a temporary protection visa, or a temporary visa of a kind (however described) prescribed for the purposes of this subparagraph.
Note: Temporary protection visas are provided for by subsection 35A(3).
…
(2) If the Minister thinks that it is in the public interest to do so, the Minister may, by written notice given to an unauthorised maritime arrival, determine that subsection (1) does not apply to an application by the unauthorised maritime arrival for a visa of a class specified in the determination.
(2A) A determination under subsection (2) may provide that it has effect only for the period specified in the determination and, if it does so, the determination ceases to have effect at the end of the specified period.
…
(2C) The Minister may, in writing, vary or revoke a determination made under subsection (2) if the Minister thinks that it is in the public interest to do so.
(3) The power under subsection (2) or (2C) may only be exercised by the Minister personally.
…
(7) The Minister does not have a duty to consider whether to exercise the power under subsection (2) or (2C) in respect of any unauthorised maritime arrival whether the Minister is requested to do so by the unauthorised maritime arrival or by any other person, or in any other circumstances.
(Emphasis added.)
113 Section 196 deals with the duration of detention. It has been set out in the passage from the Reasons extracted at [53] above.
114 Division 8 of Pt 2 deals with removal of unlawful non-citizens from Australia. Subdivision A (“Removal”) comprises ss 197C to 198. Section 198 provides in part:
198 Removal from Australia of unlawful non-citizens
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.
…
(11) This section does not apply to an unauthorised maritime arrival to whom section 198AD applies.
115 Subdivision B (“Regional processing”) comprises ss 198AA to 198AJ. Section 198AA sets out a statement of legislative purpose of the subdivision:
198AA Reason for Subdivision
This Subdivision is enacted because the Parliament considers that:
(a) people smuggling, and its undesirable consequences including the resulting loss of life at sea, are major regional problems that need to be addressed; and
(b) unauthorised maritime arrivals, including unauthorised maritime arrivals in respect of whom Australia has or may have protection obligations under the Refugees Convention as amended by the Refugees Protocol, should be able to be taken to any country designated to be a regional processing country; and
(c) it is a matter for the Minister and Parliament to decide which countries should be designated as regional processing countries; and
(d) the designation of a country to be a regional processing country need not be determined by reference to the international obligations or domestic law of that country.
116 Section 198AB (headed “Regional processing country”) provides, in subsection (1), that “[t]he Minister may, by legislative instrument, designate that a country is a regional processing country”. Subsection (2) provides that “[t]he only condition for the exercise of the power under subsection (1) is that the Minister thinks that it is in the national interest to designate the country to be a regional processing country”.
117 Section 198AC provides for certain documents to be laid before Parliament in the event that the Minister designates a country to be a regional processing country under s 198AB(1).
118 Section 198AD has been set out in part above. We now set out a fuller extract of s 198AD:
198AD Taking unauthorised maritime arrivals to a regional processing country
(1) Subject to sections 198AE, 198AF and 198AG, this section applies to an unauthorised maritime arrival who is detained under section 189.
Note: For when this section applies to a transitory person, see section 198AH.
(2) An officer must, as soon as reasonably practicable, take an unauthorised maritime arrival to whom this section applies from Australia to a regional processing country.
(2A) However, subsection (2) does not apply in relation to a person who is an unauthorised maritime arrival only because of subsection 5AA(1A) or (1AA) if the person’s parent mentioned in the relevant subsection entered Australia before 13 August 2012.
Note 1: Under subsection 5AA(1A) or (1AA) a person born in Australia or in a regional processing country may be an unauthorised maritime arrival in some circumstances.
Note 2: This section does not apply in relation to a person who entered Australia by sea before 13 August 2012: see the Migration Legislation Amendment (Regional Processing and Other Measures) Act 2012.
Powers of an officer
(3) For the purposes of subsection (2) and without limiting that subsection, an officer may do any or all of the following things within or outside Australia:
(a) place the unauthorised maritime arrival on a vehicle or vessel;
(b) restrain the unauthorised maritime arrival on a vehicle or vessel;
(c) remove the unauthorised maritime arrival from:
(i) the place at which the unauthorised maritime arrival is detained; or
(ii) a vehicle or vessel;
(d) use such force as is necessary and reasonable.
(4) If, in the course of taking an unauthorised maritime arrival to a regional processing country, an officer considers that it is necessary to return the unauthorised maritime arrival to Australia:
(a) subsection (3) applies until the unauthorised maritime arrival is returned to Australia; and
(b) section 42 does not apply in relation to the unauthorised maritime arrival’s return to Australia.
Ministerial direction
(5) If there are 2 or more regional processing countries, the Minister must, in writing, direct an officer to take an unauthorised maritime arrival, or a class of unauthorised maritime arrivals, under subsection (2) to the regional processing country specified by the Minister in the direction.
…
(Emphasis added.)
119 At the hearing of the appeal, it was common ground that the exceptions in ss 198AE, 198AF and 198AG do not apply (T110). Nevertheless, they may be relevant to the exercise of statutory construction. Section 198AE provides in part:
198AE Ministerial determination that section 198AD does not apply
(1) If the Minister thinks that it is in the public interest to do so, the Minister may, in writing, determine that section 198AD does not apply to an unauthorised maritime arrival.
Note: For specification by class, see the Acts Interpretation Act 1901.
(1A) The Minister may, in writing, vary or revoke a determination made under subsection (1) if the Minister thinks that it is in the public interest to do so.
(2) The power under subsection (1) or (1A) may only be exercised by the Minister personally.
(3) The rules of natural justice do not apply to an exercise of the power under subsection (1) or (1A).
…
(7) The Minister does not have a duty to consider whether to exercise the power under subsection (1) or (1A) in respect of any unauthorised maritime arrival, whether the Minister is requested to do so by the unauthorised maritime arrival or by any other person, or in any other circumstances.
…
120 Section 198AF provides:
198AF No regional processing country
Section 198AD does not apply to an unauthorised maritime arrival if there is no regional processing country.
121 Section 198AG provides:
198AG Non-acceptance by regional processing country
Section 198AD does not apply to an unauthorised maritime arrival if the regional processing country, or each regional processing country (if there is more than one such country), has advised an officer, in writing, that the country will not accept the unauthorised maritime arrival.
Note: For specification by class, see the Acts Interpretation Act 1901.
122 Pt 7AA of the Migration Act provides a fast track merits review process for the assessment of visa applications by fast track applicants.
123 These provisions need to be considered in the context of other provisions of the Migration Act and the relevant legislative history. The legislative history was discussed by Rangiah J in AZC20 FCA and the Full Court in AZC20 FCAFC. It was also summarised by the primary judge at [208]-[216] of the Reasons.
AZC20 FCA
124 In AZC20 FCA, the applicant sought a writ of mandamus to compel his removal to a regional processing country, namely Nauru, on the basis that the duty to take an unauthorised maritime arrival to a regional processing country in s 198AD(2) applied to him. AZC20 was an unauthorised maritime arrival and was in detention. The Minister had made a s 46A(2) determination in respect of him, and he was a “fast track applicant”. Following a lengthy process, AZC20 had been unsuccessful in obtaining a visa. At first instance, Rangiah J held that s 198AD(1) did apply to AZC20 and that it was reasonably practicable to take the applicant to Nauru. His Honour made an order in the nature of mandamus.
AZC20 FCAFC
125 The Minister and the Secretary appealed to the Full Court. However, as the primary judge in the present case noted at [246] of the Reasons, two important events occurred before the appeal was heard. Shortly after the orders of Rangiah J were made, the Minister made a determination under s 198AE(1) that s 198AD did not apply to AZC20. In addition, Nauru communicated to the Commonwealth that it would not accept AZC20; this engaged the exception in s 198AG. The Full Court held that it should nonetheless decide whether the orders of Rangiah J were in error because there were other cases where the issue was likely to arise, and the determination by the Full Court would clarify some likely aspects of another proceeding involving the parties.
126 In due course, in AZC20 HCA, the High Court by a majority held that there was no justiciable controversy before the Full Court and therefore set aside the Full Court’s orders. In these circumstances, we consider that the usual practice (namely, that the Full Court of this Court will follow a previous decision of the Full Court unless convinced it is plainly wrong – see Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v FAK19 [2021] FCAFC 153; 287 FCR 181 at [4]-[22], [104]) does not apply. Nevertheless, the reasoning of the judgment of the Full Court in AZC20 FCAFC may be regarded as being persuasive, rather than determinative.
127 The Full Court in AZC20 FCAFC held that Rangiah J had erred in his construction of s 198AD. The Full Court expressed the view at [46] that:
We consider that the primary judge erred in his construction of s 198AD(2). That provision does not apply to a person who has been the subject of a favourable decision under s 46A(2) of the Migration Act. A person in those circumstances is subject to the removal powers in s 198 of the Act, not s 198AD(2).
128 The Full Court applied the principles of statutory construction discussed in Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; 194 CLR 355 at [69]-[70] and Plaintiff S4/2014 v Minister for Immigration and Border Protection [2014] HCA 34; 253 CLR 219 at [42]. The Full Court held (at [49]) that there was a construction that yielded a harmonious operation of ss 46A, 198, 198AD and Pt 7AA.
129 The Full Court set out and discussed the relevant legislative history at [50]-[54]. This included the introduction, in 2012, of provisions relating to regional processing. It also included the introduction, by the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014 (Cth), and with effect from 18 April 2015, of the fast track merits review process under Pt 7AA of the Migration Act. As the Full Court noted at [54], there is no doubt that the fast track merits review processes were intended to be onshore processes.
130 The Full Court identified a lacuna in the legislation:
55 The lacuna revealed by the issue in these appeals is apparent in the extrinsic material. There are no references in the extrinsic material to the applicability of the amendments to persons who were liable to removal to an offshore processing country, but had not in fact been removed, and had subsequently received a favourable decision under s 46A(2).
(Bold emphasis added.)
131 The Full Court identified an issue in need of reconciliation:
59 The Court’s task is to reconcile how the 2014 amendments [introducing the fast track merits review process] operate on a person such as the respondent — a person who was subject to the s 198AD removal power initially, but was not in fact removed, and who then was permitted to make a (domestic) protection visa application while remaining in Australia.
(Emphasis added.)
132 The Full Court’s core reasoning is at [60]-[70], which included the following:
61 First, it is important to recall s 46A was in the legislative scheme at all relevant times — that is, prior to the 2012 regional processing amendments, and prior to the introduction of Pt 7AA in April 2015.
…
63 In our opinion, it was not the introduction of Pt 7AA that changed the proper construction of s 198AD(2). The respondent remained subject to s 198AD before and after the introduction of Pt 7AA in April 2015, as senior counsel for the appellants conceded in oral argument.
64 What changed the application of s 198AD(2) to the respondent was the Minister’s exercise of power under s 46A(2) of the Act in relation to the respondent, on 13 August 2015. …
66 Prior to 18 April 2015, when the s 46A(2) power was exercised, a person would have access to what were the existing decision-making processes under the Migration Act — a decision by a delegate, and an entitlement to merits review in the AAT.
67 After 18 April 2015, when the s 46A(2) power was exercised, a person would only have access to the “fast track” system under Pt 7AA, by reason of the [definition] of “fast track applicant”.
68 In either case, in our opinion, the intention of the legislative scheme is that those individuals who are permitted, by an exercise of Ministerial power under s 46A(2), to apply for a visa, are thereafter not intended to be subjected to being taken to a regional processing centre under s 198AD. The reason is the same in each situation: such individuals have been given access to an onshore, domestic process to have their claims for protection heard and determined. The purpose of taking them to a regional processing centre no longer exists. Their claims will be processed in Australia, under Australian domestic legislation; the Minister has made a conscious and deliberate decision to that effect. Thus, once the s 46A(2) power was exercised, it was no longer “reasonably practicable” for a person such as the respondent to be removed to a regional processing country.
69 Once any visa application has been finally determined, as that phrase is defined in ss 5(9) and 5(9A) of the Act, a person in the respondent’s position would be exposed to removal under s 198(6) of the Act, read now with s 197C of the Act. That duty would again remain subject to removal being “reasonably practicable”: for example, depending on whether there is an outstanding judicial review application.
70 Therefore, the appellants are correct to submit that the reasoning of the primary judge is in error, but not quite for the reasons the appellants submitted. The critical factor in reaching a harmonious construction of the relevant provisions is not the definition of “fast track applicant”; rather it is the fact that an exercise of power under s 46A(2) renders a person’s removal no longer “reasonably practicable”, because the legislative scheme contemplates that such a person has the capacity to make a visa application that is to be processed onshore.
(Bold emphasis added.)
133 As indicated by the emphasised parts of the above passage, the textual basis of the Full Court’s reasoning was the words “reasonably practicable”. Those words appear in s 198AD(2). The Full Court reasoned that, in circumstances where the Minister had exercised the power in s 46A(2) to lift the bar in respect of a person (giving the person access to a system of onshore processing of their visa application), it was no longer “reasonably practicable” to remove the person to a regional processing country.
The reasons of the primary judge
134 We now refer in more detail to the reasons of the primary judge on the central issue of statutory construction. The primary judge’s core reasoning on the issue was at [263]-[280] of the Reasons. The primary judge outlined (at [265]) the broad difference between the approach of Rangiah J and the approach taken by the Full Court, stating that there is authority to support both approaches. After discussing the authorities supporting each approach, the primary judge reasoned as follows. It is necessary to set out his Honour’s reasoning in some detail in order to provide context for the submissions on appeal.
272 In my respectful view, in favour of the construction preferred by Rangiah J are three features: (1) the construction is clearly open on the text; (2) the presence of express exceptions to s 198AD militates against implying further exceptions; and (3) the presence of the Minister’s power under s 198AE to determine that s 198AD does not apply to a particular unauthorised maritime arrival is an obvious way in which inconvenient outcomes might be avoided.
273 There are, however, some features of Rangiah J’s reasons with which respectfully I do not agree. The first is that there is no need for the power to lift the bar under s 46A(2) to be exercised in conjunction with a determination under s 198AE. The present case affords an illustration. At the time the bar in respect of the applicant was lifted, the applicant held a bridging visa, and for that reason alone he was not liable to be taken to a regional processing country. Further, on the authority of the Offshore Processing Case at [35] and [71], if it were material I would construe the obligation under s 198AD(2) to take an unauthorised maritime arrival to a regional processing country “as soon as reasonably practicable” in light of other relevant provisions of the Act, and as accommodating at least the consideration and any review of a protection visa application once made. The effect of those occurrences would be that s 198AD(2), in its application to a particular unauthorised maritime arrival at a particular time, would not authorise taking the person to a regional processing country. On this analysis, the question in issue narrows to what is the situation after all onshore visa application processes have been exhausted. Does the unauthorised maritime arrival remain subject to s 198AD, or does s 198 apply, despite s 198(11)?
…
276 I stated earlier that the textual “hook” supporting the Full Court’s reasons was the phrase “as soon as reasonably practicable” appearing in s 198AD(2). It is arguable in my view that this phrase is concerned with the timing of removal to a regional processing country, and not the utility of the removal. A further difficulty in my view is that there is a difference between whether s 198AD applies to a person, and whether the obligation under s 198AD(2) is engaged. Whether something is reasonably practicable is fact-dependent. It is also a circumstance that may change from time to time, and the absence of reasonable practicability at a particular point in time does not lead to the result that s 198AD does not apply. To take an example, a transfer to a regional processing country might be reasonably practicable if no intention or procedural decision to consider raising the bar under s 46A(2) exists. And if an unauthorised maritime arrival in whose favour the bar is lifted fails to take up the opportunity to apply for a visa, it is not obvious that the mere lifting of the bar makes transfer to a regional processing country not reasonably practicable.
277 What follows is within the realm of the hypothetical, but consider a case in which a regional processing country accommodated applications for protection visas under local laws, notwithstanding prior refusal of an application under Australian law — providing, in other words, a “second bite at the cherry”. Further, consider a case in which the local laws of a regional processing country accommodated an application by a person who had failed to take up the opportunity to apply for a protection visa in Australia while the bar remained lifted. In those circumstances, why should transfer to the regional processing country be regarded as not reasonably practicable?
278 In this case, however, there is no evidence as to a whole range of matters, including the identity of the regional processing country or the utility of transferring [CRS20] to the regional processing country. Nevertheless, these examples can still shed light on the practical operation of s 198AD(2), and so on the construction that should or must be preferred in order to ensure that s 198AD(2) works in harmony with other provisions of the Act. The point is that, while the Act provides for a bifurcated scheme of onshore and offshore processing, it is not clear that it would in all cases undermine that statutory scheme for s 198AD to apply to an unauthorised maritime arrival in whose favour the bar has been lifted. And, in light of what I have said about when the taking of a person under s 198AD(2) would be “reasonably practicable”, it may be that s 198AD(2) itself operates to prevent inconvenient results from arising. This militates against the view that it is necessary to construe s 198AD(1) as subject to an implied exception in order to give a harmonious operation to the Act.
279 More fundamentally in my view, there is a difference between the application of s 198AD to a person, and the existence of the obligation to transfer. As I have sought to explain, the obligation to transfer an unauthorised maritime arrival may change from time to time depending upon what is reasonably practicable. But the application of s 198AD is governed by the text of s 198AD(1). The exclusion of s 198 in s 198(11) is directed to the application of s 198AD, and not to whether at any particular point in time transfer is reasonably practicable. It does not follow from the fact that, at some point in time, transfer is not reasonably practicable that s 198AD(1) does not apply to a person at that time. To the extent that the Full Court is to be understood as holding that it is never reasonably practicable to take a person to a regional processing country once the bar has been lifted under s 46A(2), it is arguable that this conclusion does not grapple with the full range of possible circumstances that could arise for consideration. I am therefore not persuaded by the reasoning of the Full Court that the decision of Rangiah J was plainly wrong.
280 The question then is whether s 198AD(1) is itself the subject of an implied limitation that the section does not apply to an unauthorised maritime arrival in respect of whom the bar has been lifted, or who has made a valid application for a protection visa. The existence of those alternatives immediately raises a problem, namely that the terms of the implied exception are not clear. Applying the principles referred to by the majority in Taylor, I am not persuaded that where the text of s 198(11) and s 198AD(1) is clear, where the terms of the implied exception are not clear, where there are express exceptions to the application of s 198AD, and where one of those exceptions is the capacity of the Minister to determine that s 198AD does not apply, that a further exception should be implied in addition to those expressly stated. On this issue, and having given the Full Court’s reasons appropriate weight, I am not persuaded that the conclusion of Rangiah J in AZC20 FCA, namely that there is no implied exception, is plainly wrong. As a consequence, I should follow AZC20 FCA.
(Bold emphasis added.)
Consideration
135 The Secretary contends that the primary judge erred. The Secretary generally relies on the reasoning of the Full Court in AZC20 FCAFC. The Secretary accepts that, as the primary judge stated, the textual “hook” underpinning the conclusion of the Full Court in AZC20 FCAFC was the words “as soon as reasonably practicable”, but says that those words are not the only textual matters that support the Full Court’s conclusion that the obligation in s 198AD does not apply to a person who has the benefit of a favourable exercise of the power conferred by s 46A(2). The Secretary submits that, in particular, various provisions of s 198 (including s 198(6)) assume that an obligation to remove under s 198 will arise after a person has either not made a valid application for a visa, or has made an application but that application has been refused and finally determined. The Secretary submits that the text of s 198(11) also acknowledges that s 198AD will not necessarily apply to all unauthorised maritime arrivals; there is no reason to confine that class of person to those unauthorised maritime arrivals the subject of the express carve-outs in s 198AD(1).
136 The Secretary accepts that, as the primary judge reasoned, “there is a difference between the application of s 198AD to a person, and the existence of the obligation to transfer”. However, the Secretary submits that the reasoning in AZC20 FCAFC must be understood as holding that, once the bar has been raised under s 46A(2), s 198AD no longer applies to the person. The Secretary submits that: it is true that their Honours placed some reliance on the words “as soon as reasonably practicable”, but their Honours were clear that they were concerned with a permanent disapplication of the obligation in s 198AD; it is no longer ever reasonably practicable to take a person to a regional processing country (either before or after a protection visa application is determined); that is why their Honours said that, after a bar lift, a person was “thereafter not intended to be subjected to being taken to a regional processing centre under s 198AD”: AZC20 FCAFC at [68].
137 The Secretary submits that it is clear from the legislative materials that, as the Full Court held, the purpose of a transfer to a regional processing country has always been viewed by Parliament as an alternative to onshore processing, not an opportunity for a “second bite at the cherry”. So much can be seen in the legislative history, particularly in:
(a) the establishment of offshore processing, and then regional processing, as an alternative for all “offshore entry persons” and then unauthorised maritime arrivals, subject to the exercise of the Ministerial discretion in s 46A(2); and
(b) the presence of the onshore fast track review process in Pt 7AA for the determination of protection claims, which the Full Court accepted was an alternative to (offshore) regional processing: AZC20 FCAFC at [68]-[70].
138 In our view, the construction of s 198AD(1) adopted by the primary judge was correct, essentially for the reasons given by his Honour. In other words, on its true construction, s 198AD is not subject to an exception: (a) where a determination has been made under s 46A(2); or (b) where a determination has been made under s 46A(2) and the person has made an application for a visa (i.e. where the person is a fast track applicant).
139 First, this construction is consistent with the text of s 198AD(1). On the text of s 198AD(1) it is capable of applying to a person in respect of whom a determination has been made under s 46A(2). It is also capable of applying to a person in respect of whom such a determination has been made and who has applied for a visa.
140 Secondly, the presence of express exceptions to the application of s 198AD militates against implying further exceptions. Section 198AD(1) is expressly subject to ss 198AE, 198AF and 198AG. The presence of these express exceptions makes it unlikely that the legislature intended there to be additional implied exceptions. If the legislature had intended there to be additional exceptions (eg, where a determination had been made under s 46A(2)), it would likely have said so.
141 Thirdly, the presence of the Minister’s power under s 198AE to determine that s 198AD does not apply to a particular unauthorised maritime arrival is an available mechanism by which inconvenient outcomes might be avoided. Thus, even if it be accepted that it was not intended that a person who had had the benefit of onshore processing would then be subject to further processing in a regional processing country, the Act provides a way in which this outcome can be avoided, namely the making of a determination under s 198AE. In this way, the legislation contains a mechanism to address the concern identified by the Full Court such that it is unnecessary to recognise an implied exception to s 198AD for the purpose of addressing that concern.
142 We consider that the primary judge was correct in identifying a difficulty with the Full Court’s analysis, namely that the textual basis of the Full Court’s reasoning was the words “reasonably practicable”. Those words appear in s 198AD(2), which concerns the obligation to take a person to a regional processing country. However, the issue for present purposes is whether s 198AD applies to a person, a matter dealt with in s 198AD(1). The exception recognised in AZC20 FCAFC must therefore be an implied exception, and for the reasons we have explained, there is not sufficient reason to draw such an implication.
143 For these reasons, we consider that the primary judge’s construction was correct. His Honour was therefore correct to conclude that s 198AD rather than s 198 applied to CRS20. We therefore reject ground 1 of the appeal.
Evidential Onus Issue
144 The next issue is whether the primary judge erred in finding that CRS20 had discharged his evidential onus of proving that his detention was unlawful. This is raised by ground 2 of the appeal, which is relied on by the Secretary in the alternative to ground 1. The premise of ground 2 is that, contrary to the Secretary’s primary position, his Honour was correct to hold that s 198AD applied to CRS20.
145 The Secretary’s submission can be summarised as follows:
(a) It is well established that an applicant for habeas carries “at least an initial evidentiary burden of establishing that there is reason to suppose that his [or her] detention has ceased to be lawful by reason that it is no longer reasonably foreseeable that he [or she] will be removed from Australia”: Plaintiff M47/2018 v Minister for Home Affairs [2019] HCA 17; 265 CLR 285 at [39]; see also Minister for Immigration and Multicultural and Indigenous Affairs v Al Masri [2003] FCAFC 70; 126 FCR 54 at [176]; McHugh (No 1) at [273] per Mortimer J.
(b) The primary judge must have concluded that CRS20 had discharged this evidential onus with respect to the prospect of removal to a regional processing country, because his Honour proceeded on the basis that the Secretary bore (and did not meet) the legal onus: Reasons, [281]. However, his Honour did not explain any reasoning for that conclusion with respect to the prospect of removal to a regional processing country.
(c) It cannot have been because of a concession by the Secretary. The primary judge noted that the Secretary had “conceded in [her] written submissions that [CRS20] had discharged [his] evidentiary onus”, but that the “concession must be understood in its context”, namely that it occurred before CRS20 raised two new points, being his medical fitness to travel, and the point that the relevant removal obligation was found in s 198AD of the Act: Reasons, [148].
(d) His Honour correctly stated the way in which an evidential onus operates, namely that CRS20 “discharged his evidentiary onus by raising a particular prospect; it then fell to the respondents to show on the whole of the evidence that that prospect could not be sustained”: Reasons, [160]. Consistently with that approach, his Honour considered the evidential onus in detail in relation to the medical fitness issue: Reasons, [148]-[161]. However, his Honour did not undertake a similar exercise with respect to the prospect of removal to a regional processing country.
(e) The only matter that his Honour could have relied upon as discharging CRS20’s evidential onus is the length of time he had spent in detention, on the basis that the past rationally informs the future: Reasons, [78], citing CKL21 v Minister for Home Affairs [2022] FCAFC 70; 293 FCR 634 at [74]. It may be accepted that, in an appropriate case, a long time without progress towards removal might shed light upon the future prospect of removal. However, in circumstances where it was agreed that – until CRS20’s closing submissions – the Secretary had been attempting to remove CRS20 under s 198(1) to Iraq and Iran, the length of time taken to achieve removal to those countries could not rationally bear upon an alternative (and mutually exclusive) prospect of removal to a regional processing country under s 198AD.
(f) The true position is that CRS20 led no evidence to establish an absence of any prospect of removal to a regional processing country. In doing so, he failed to discharge his evidential onus, and the legal onus never fell upon the Secretary to prove a real prospect of removal to a regional processing country.
146 In our view, the primary judge implicitly found that CRS20 had discharged the initial evidential onus, and no error is shown in that finding.
147 The primary judge correctly recognised that an applicant for a writ of habeas corpus carries “an initial evidential burden of establishing that there is reason to suppose that his or her detention has ceased to be lawful by reason that it has transgressed the applicable constitutional limitation on his or her detention”: see the Reasons at [74], set out above. The primary judge explained why, on the basis of the Secretary’s written submissions, he (the primary judge) took the Secretary to have conceded that CRS20 had discharged the initial evidential burden: Reasons, [75]. However, as the primary judge stated at [148], that concession needed to be read in context, and did not apply to the issues raised by CRS20 during submissions after the close of evidence, namely the fitness to travel issue and the issue whether s 198AD applied. In the last section of the Reasons, at [281]-[282], the primary judge considered whether the Secretary had satisfied her onus of showing that there existed a real prospect of removal of CRS20 to a regional processing country becoming practicable in the reasonably foreseeable future. In light of the earlier parts of the Reasons to which we have referred, it can be inferred that the primary judge would not have considered that issue unless he had been satisfied that CRS20 had discharged the initial evidential onus.
148 Further, no error is shown in the primary judge’s implicit finding that CRS20 had satisfied his initial evidential onus. Until the s 198AD point was raised in CRS20’s submissions, the case had proceeded on the basis that the countries to which CRS20 could potentially be returned were Iran or Iraq. The s 198AD argument provided a reason why there may be no real prospect of removal to Iran or Iraq becoming practicable (as the primary judge explained at [192]). The s 198AD argument also raised the issue whether there was a real prospect of removal of CRS20 to a regional processing country becoming practicable in the reasonably foreseeable future. In our view, in circumstances where CRS20 had by this stage been detained for a long period of time (and not taken to a regional processing country), the raising of the argument was sufficient to satisfy the evidential onus. It directed the Secretary’s attention to the basis upon which it was contended that CRS20’s detention was unlawful. It was open to the Secretary to file material in response to that contention (eg, to show that there was a real prospect of taking CRS20 to a regional processing country becoming practicable in the reasonably foreseeable future), but the Secretary did not file any such material. Nor did the Secretary seek an adjournment in which to do so.
149 For these reasons, ground 2 is not made out. It follows that the appeal is to be dismissed.
Further Evidence on Appeal Issue
150 In light of the conclusion that the appeal is to be dismissed, it is not strictly necessary to consider CRS20’s application for the Court to receive further evidence on appeal, because the further evidence is sought to be adduced in support of the notice of contention, and the notice of contention need not be considered. However, we consider it appropriate to deal with the application.
151 In our opinion, the application for the Court to receive further evidence on appeal should be dismissed. The relevant principles were set out in CKT20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 124; 294 FCR 318 (Katzmann, Charlesworth and Burley JJ) at [32]-[34]. The proposed evidence is contained in an affidavit of Ms Saravanamuthu dated 17 October 2024, which deposes to a telephone conversation she had on 26 June 2024 with a staff member at the Iraqi embassy. The evidence is hearsay. There is no documentary confirmation of the contents of the telephone conversation. We consider that the evidence is of insufficient weight to justify its reception on appeal.
Notice of Contention Issue
152 In circumstances where the appeal is to be dismissed, it is unnecessary to consider the notice of contention.
Conclusion
153 Accordingly, we will make orders to the following effect:
(a) CRS20’s objection to competency be dismissed;
(b) CRS20’s interlocutory application (seeking an order that the Court receive further evidence on appeal) be dismissed; and
(c) the appeal be dismissed.
154 In relation to costs, our preliminary view is that the following orders are appropriate:
(a) there be no order as to costs in relation to CRS20’s objection to competency and CRS20’s interlocutory application; and
(b) the Secretary pay CRS20’s costs of the appeal.
155 We will make orders to that effect, but we will provide the parties with a brief opportunity to file and serve submissions if they seek different costs orders.
I certify that the preceding one hundred and fifty-five (155) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justices Moshinsky, Bromwich and Sarah C Derrington. |
Associate:
