Federal Court of Australia

CZCV v Commonwealth of Australia [2020] FCA 1864

ORDERS

THE COURT ORDERS THAT:

1.    The applicant’s interlocutory application for release from detention is dismissed.

2.    The applicant pay the respondent’s costs of the applicant’s interlocutory application.

3.    The respondent’s application for a stay of the proceeding be adjourned to a date to be fixed.

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

REASONS FOR JUDGMENT

(DELIVERED EX TEMPORE AND REVISED)

RANGIAH J:

1    There is before the Court an interlocutory application, brought on an urgent basis, for orders compelling the release of the applicant from immigration detention.

2    The applicant is a national of Zimbabwe. He is currently detained at the Yongah Hill Immigration Detention Centre.

3    The applicant arrived in Australia on 13 July 2012 and was granted a Bridging A (Class WA) visa. On 13 June 2014, he was sentenced to four-and-a-half years’ imprisonment for sexual offences against a minor. His visa was cancelled pursuant to s 501(3A) of the Migration Act 1994 (Cth) (the Act) on 7 January 2016.

4    On about 28 November 2017, the applicant was taken into immigration detention pursuant to s 189(1) of the Act, having become an unlawful non-citizen by reason of the cancellation of his visa.

5    On 14 November 2018, a delegate of the Minister for Home Affairs decided not to revoke the mandatory cancellation of the applicant’s visa. On the same day, a delegate also refused, pursuant to s 501(1) of the Act, to grant the applicant a Protection Visa, which he had applied for on 6 February 2013.

6    The applicant sought review of the refusal of the Protection Visa, but, on 6 February 2019, the Administrative Appeals Tribunal (the Tribunal) affirmed the decision. The applicant filed an application in the Federal Court of Australia seeking review of the Tribunal’s decision, but that application was discontinued on 28 August 2019.

7    The applicant has now commenced proceedings contending that his detention has been unlawful since 28 August 2019, and seeking the issue of a writ of habeas corpus and damages for false imprisonment.

8    The applicant relies upon AJL20 v Commonwealth of Australia [2020] FCA 1305, where Bromberg J held at [11] that, relevantly, the Act supports lawful detention only for the purposes of:

 (a)     removing the detainee from Australia;

(b)     receiving, investigating and determining an application for a visa by the detainee to enter and remain in Australia;

(c)     determining whether to permit the detainee to make a valid application for a visa; or

(d)     possibly, determining whether to grant the detainee a visa without an application made by the detainee.

9    The applicant contends that his detention is unlawful because it is not for one of these purposes and the respondent has not been attempting to remove him from Australia as soon as reasonably practicable as required under s 198 of the Act.

10    The Commonwealth has appealed against the judgment in AJL20. The appeal has been removed to the High Court and is to be heard in April 2021.

11    The Commonwealth accepts that the applicant has demonstrated a prima facie case that the respondent has not complied with its obligation under s 198 to remove the applicant from Australia as soon as reasonably practicable. However, the respondent contends, principally, that the Act does not permit the release of an unlawful non-citizen on an interlocutory basis where the person is detained as a result of the cancellation of his or her visa under s 501(3A) of the Act.

12    Section 189(1) of the Act provides:

189  Detention of unlawful non-citizens

(1)      If an officer knows or reasonably suspects that a person in the migration zone (other than an excised offshore place) is an unlawful non-citizen, the officer must detain the person.

13    Section 196 provides, relevantly:

196 Duration of detention

(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.

…

(3)     To avoid doubt, subsection (1) prevents the release, even by a court, of an unlawful non‑citizen from detention (otherwise than as referred to in paragraph (1)(a), (aa) or (b)) unless the non‑citizen has been granted a visa.

(4)     Subject to paragraphs (1)(a), (b) and (c), if the person is detained as a result of the cancellation of his or her visa under section 501, 501A, 501B, 501BA or 501F, the detention is to continue unless a court finally determines that the detention is unlawful, or that the person detained is not an unlawful non‑citizen.

…

(6)     This section has effect despite any other law.

14    In the Second Reading Speech for the Migration Amendment (Duration of Detention) Bill 2003 (Cth) that inserted s 196(4) into the Act it was said:

The intention of section 196 was to make it clear that there was to be no discretion for any person, or court to release from detention an unlawful non-citizen who is lawfully being held in immigration detention.

…

Since the latter part of 2002, the Federal Court has decided that the Migration Act does not preclude the court from making interlocutory orders that persons be released from immigration detention pending the court’s final determination of the person’s judicial review application.

…

In its judgements, the Federal Court has indicated that if the Parliament wishes to prevent a court from ordering the interlocutory release of a person from immigration detention it must make its intentions unmistakably clear. This bill is intended to achieve this.

…

I stress that the amendments contained in the Bill do not affect the court’s powers to finally determine the lawfulness of a person’s detention, or to finally determine the lawfulness of the decision or action being challenged.

They are intended simply to clarify the existing provisions of the Act. They do no more than what the courts have said that the Parliament needs to do. That is make its intention in relation to immigration detention unmistakably clear.

(Emphasis in original.)

15    The applicant submits that s 196(4) does not apply in this case because he “is detained” as a result of the refusal of his Protection Visa application and not as a result of the cancellation of his visa under s 501(3A). The submission seems to be that the refusal of the Protection Visa application broke the nexus between the cancellation of his visa under s 501(3A) and his ongoing detention. The applicant submits alternatively that the Court has power under s 23 of the Federal Court of Australia Act 1976 (Cth) to order his release on an interlocutory basis and that s 196(1) of the Act is not inconsistent with s 23.

16    The applicant’s submissions cannot be accepted. The applicant is in detention because s 189(1) of the Act requires an officer who knows or reasonably suspects that a person in the migration zone is an unlawful non-citizen to detain the person. The applicant is an “unlawful non-citizen” within s 14 of the Act since he does not hold a visa that is in effect. The applicant does not hold a visa that is in effect because his visa was cancelled under s 501(3A). Accordingly, within s 196(4), he is detained “as a result of the cancellation of his…visa under section 501”. The fact that the applicant does not hold a visa for a second reason, namely, that his application for a Protection Visa was refused, does not remove the applicant’s detention from that description. Section 196(4) requires that detention be “a result” of the cancellation under s 501, not that it be the sole reason.

17    The same or similar arguments have been rejected by single judges of this court in Applicant in WAD 230/2014 v Minister for Immigration & Border Protection [2014] FCA 1351 at [16]-[19], Durani v Minister for Immigration and Border Protection (2013) 223 FCR 391 at 38 and AFF20 v Minister for Home Affairs [2020] FCA 546 at [12]. The applicant submits that these judgments should not be followed as they are clearly wrong. I do not accept that they are clearly wrong. In any event, there is a judgment of the Full Court in Ongel v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 239 to similar effect, and I am bound to follow that judgment.

18    I hold that ss 196(1), (3) and (4) apply in the circumstances of this case, and that the Court has no power to order that the applicant be released from immigration detention on an interlocutory basis in circumstances where he is an unlawful non-citizen. The application for interlocutory relief will therefore be dismissed.

Associate:    

Dated:    18 January 2021