Federal Court of Australia

Bethell v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 756

ORDERS

THE COURT ORDERS THAT:

1.    The application for the interlocutory injunction contained in paragraph 3 of the orders sought in the Notice of Appeal is refused.

2.    Costs be in the cause.

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

EX TEMPORE REASONS FOR JUDGMENT

(Revised from Transcript)

WHITE J:

Introduction

1    I am dealing with an application for an urgent interlocutory injunction to restrain the respondent from deporting the appellant from Australia pending the hearing and determination of his appeal against the decision of Rangiah J in Bethell v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 661. By that judgment, Rangiah J refused an application for the issue of a writ of habeas corpus.

2    The application requires urgent determination. Initially it seemed that the application would have to be determined this morning because arrangements have been made for the appellant to be removed from Australia on a flight departing Brisbane at 2.45 pm today. Rangiah J had delivered the judgment which is the subject of the appeal late on Thursday, 17 June 2021. The time between then and now has been necessarily short, hence the urgency.

3    An affidavit from the respondent’s solicitor provided at the commencement of this morning’s hearing indicated, in effect, that it is no longer practical for the Department to effect the deportation this afternoon and counsel for the respondent acknowledged that that would not occur. However, the Department plans another deportation flight on Wednesday or Thursday of this week, subject to logistical considerations, including the availability of escorts, quarantine caps and COVID-19 testing.

4    Although the appellant was represented by pro bono senior counsel in the proceedings before Rangiah J, he lodged the Notice of Appeal as a self-represented litigant and has represented himself at today’s hearing. Following the respondent's acknowledgement that the deportation would not proceed this afternoon, I informed the appellant at the commencement of the hearing that I would consider an application for adjournment of the hearing if he wished to obtain legal advice or representation. The appellant said, however, that he wished the hearing to proceed.

5    Some of the appellant's submissions seemed to proceed on the basis that the Court was hearing a new and freestanding application for the issue of a writ of habeas corpus. As I explained to the appellant more than once, that is not the matter which is presently before the Court. All I am dealing with is the application for the interlocutory injunction contained in paragraph 3 of his Notice of Appeal, seeking to restrain his deportation pending the hearing and determination of the appeal.

Principles concerning interlocutory injunctions

6    The principles relating to the Court’s grant of interlocutory injunctions are settled and it is not necessary for the purposes of this application to refer to the authorities in any detail. They were summarised by the Full Court in Samsung Electronics Company Limited v Apple Inc [2011] FCAFC 156; (2011) 217 FCR 238 at [52]-[74]. An applicant for an interlocutory injunction must identify the legal or equitable rights which it seeks to have determined at the substantive hearing and in respect of which final relief will be sought. When such rights have been identified, the Court has regard to two principal matters: first, whether the applicant has made out a prima facie case in the sense that, if the materials remain as they are on appeal, there is a probability that the applicant will be held entitled to relief and, secondly, whether the balance of convenience favours the granting of the injunction. In many cases that includes consideration of whether damages or other remedies will be an adequate remedy, but that is not an issue in the circumstances of the present application.

7    On the hearing of an application for an interlocutory injunction, the Court does not undertake a preliminary trial, or, as in this case, a preliminary hearing of the appeal. Nor does it make a prediction as the ultimate success or otherwise of the applicant’s claim or appeal. It is enough for the applicant to show a sufficient likelihood of success to justify, in the circumstances of the case, the preservation of the status quo pending the trial of the action or as in this case the hearing of the appeal.

8    The two matters which I have just mentioned are not always independent of one another. The more the balance of convenience favours the respondent, and the more serious the consequences for the respondent if an injunction is granted, then the greater the strength of the prima facie case to be established by the applicant. Conversely, if the balance of convenience favours the applicant strongly then the strength of the prima facie case required to support the interlocutory injunction will usually be less.

Principles relating to stays pending appeals

9    In many respects, the present application is analogous to an application for a stay of enforcement of a judgment pending an appeal. Accordingly, I consider it appropriate to refer also to the principles governing the Court’s exercise of the discretion to grant such a stay:

(a)    prima facie, a successful party is entitled to the benefit of the judgment which it has obtained and the Court should commence with a presumption that the judgment is correct: Power Flex Services Pty Ltd v Data Access Corporation (1996) 67 FCR 65 at 66 citing Mahoney JA in Re Middle Harbour Investments Ltd (in liq) (CA (NSW), 15 December 1976, unreported); Citrus Queensland Pty Ltd v Sun State Orchards Pty Ltd [2008] FCA 1867 at [39]; and Esco Corporation v PAC Mining Pty Ltd [2008] FCA 1018 at [19]. A final judgment is not to be regarded as provisional, contingent or operating only subject to confirmation on appeal.

(b)    nevertheless, the Court has a broad discretion under r 36.08 of the Federal Court Rules 2011 (Cth) to grant a stay pending an appeal in an appropriate case: Power Flex at 66-67; Citrus Queensland at [39];

(c)    an applicant for a stay should demonstrate that there is “a reason or an appropriate case” warranting an exercise of the discretion departing from the prima facie position. The mere filing of a notice of appeal is not sufficient: Power Flex at 66; Alexander v Cambridge Credit Corp Ltd (Receivers Appointed) (1985) 2 NSWLR 685 at 694; Cook’s Construction Pty Ltd v Stork Food Systems Australasia Pty Ltd [2008] QCA 322, [2008] 2 Qd R 453 at [12];

(d)    an applicant for a stay must usually demonstrate that the appeal has at least reasonably arguable prospects of success. The threshold is low and, in order to see whether an appellant has discharged it, the Court makes a “preliminary non-speculative assessment”: Citrus Queensland at [40];

(e)    an applicant for the stay should also satisfy the Court that the proposed stay is “fair to all parties” having regard to the balance of convenience (i.e., the balance of risks and irremediable harm) and the competing rights of the parties”: Alexander v Cambridge Credit at 694; Citrus Queensland at [39] and [47]; Esco Corp at [20]; and

(f)    the existence of a real risk that the appeal will be rendered nugatory if the stay is not granted is a substantial factor in favour of granting the stay, but it is not conclusive. It is to be weighed against the risk of prejudice to the successful party at first instance if execution of the judgment is stayed: Citrus Queensland at [41]; Alexander v Cambridge Credit at 695.

10    Having regard to these principles, I come more directly to the present application.

The judgment at first instance

11    In the judgment at first instance, Rangiah J determined an application for the issue of a writ of habeas corpus. The appellant sought the issue of that writ because he contended that his continued detention in immigration detention pursuant to s 196(1) of the Migration Act 1958 (Cth) (the Act) is unlawful.

12    The appellant had also been held in immigration detention between 15 November 2019 and 15 January 2021. That period of detention had commenced on his release from prison.

13    The detention, which commenced on 15 November 2019, had ceased when the appellant was released on a Bridging Visa on 15 January 2021. However, the Minister cancelled the Bridging Visa on 23 February 2021, acting pursuant to s 133C(3) of the Act. The appellant then became an unlawful non-citizen (see s 14 of the Act) and therefore subject to detention under s 189 of the Act. He was taken back into detention on 26 February 2021 and has remained in detention ever since.

14    On 29 March 2021, the appellant commenced the proceeding seeking the issue of the writ of habeas corpus. His application relied on s 198(5) of the Act, which provides:

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

   (a)    is a detainee; and

(b)    neither applied for a substantive visa in accordance with subsection 195(1) nor applied under section 137K for revocation of the cancellation of a substantive visa;

regardless of whether the non-citizen has made a valid application for a bridging visa.

15    It was common ground that no application of the kind referred to in s 198(5)(b) has been made.

16    In effect, the appellant contended that, despite the terms of s 196 of the Act, the effect of s 198 is that he could be detained only for the purpose of his removal from Australia and that the effectuation of that purpose required that he be removed from Australia as soon as reasonably practicable. He contended that, because his removal as soon as reasonably practicable had not occurred, his continued detention was unlawful. For this purpose, the appellant relied upon the decision of Bromberg J in AJL20 v Commonwealth of Australia [2020] FCA 1305. That decision is the subject of a reserved judgment on appeal to the High Court of Australia.

17    Although the respondent contended at first instance that Rangiah J should not follow the decision in AJL20, his Honour proceeded on the basis that the decision was not clearly wrong. In doing so, Rangiah J followed the approach of Jagot J in Tran v Commonwealth of Australia [2021] FCA 580.

18    Having reviewed the authorities, Rangiah J identified the issue for his determination in [25] of his reasons as being:

[T]he issue to be determined is whether the respondent has demonstrated that the purpose of detention remains the removal of the applicant from Australia as soon as reasonably practicable. In considering this issue, it is relevant to consider whether it became reasonably practicable to remove the applicant at some time between 26 February 2021 and the present time.

19    This was essentially a factual question. Rangiah J noted that the appellant’s allegations of delay related to the period from 26 February 2021 to 11 May 2021, at [42] and particularly to the period between 26 February 2021 and 22 March 2021, at [43].

20    Rangiah J rejected the appellant’s claims, stating at [48]:

I find that there has not been any abandonment of, or departure from, the permissible purpose. The departmental officers have taken reasonable and adequately prompt steps to remove the applicant as soon as reasonably practicable since 26 February 2021. Arrangements were made for the applicant’s removal on 14 June 2021 and have now been remade for 21 June 2021. That demonstrates that the current purpose remains to remove the applicant as soon as reasonably practicable.

21    Rangiah J also noted, at [50], that a requirement for the issue of a writ of habeas corpus is that the person’s detention be unlawful at the time the matter is being addressed by the Court. His Honour considered that if, contrary to his view, the detention had ceased to be lawful some time before 11 May 2021 because it was not for a purpose contemplated by the Act, its legitimacy could be regained if its purpose thereafter was the removal of the appellant from Australia as soon as reasonably practicable. Rangiah J considered that circumstance to pertain, especially in the light of the evidence of the steps taken by the department since 11 May 2021, to effect the appellant’s removal from Australia.

The grounds of appeal

22    The appellant’s Notice of Appeal prepared by himself and, as he emphasised, prepared in the limited time available since judgment was delivered late on 17 June 2021, contains three grounds:

1.    His Honour failed to [assess] the lawfulness of the original decision (the Ministers decision to cancel the visa). His Honour therefore missed the primary purpose of the application; and considered only if the applicant since his application to the court, was being removed as soon as reasonably practical.

2.    The delay in hearing the matter, prevented a fair hearing, for the purpose of Habeas.

3.    The costs awarded in a Habeas application are manifestly unjust.

23    In order to establish a serious issue to be tried, the appellant must establish that at least one of those grounds is reasonably arguable. I emphasise again that, contrary to some of the appellant’s submissions, the issue presently for the Court is not whether there is a reasonably arguable case for the issue of a grant of habeas corpus. Instead, the question is whether there is a reasonably arguable case of error by Rangiah J in the decision which he reached.

The appellant’s submissions

24    I think it fair to say that the appellant’s submissions tended to be wide-ranging and included complaints about various aspects of the visas issued to him, or not issued to him, as the case may be, their cancellation, his detention, and statements of members of the Department in relation to his detention and the visa cancellations. Many of these matters appear not to have been the subject of evidence or submissions at first instance. There is a ready explanation why this is so. In [2] and [3] of the written Outline of Submissions provided by the appellant’s pro bono senior counsel at first instance, counsel said:

[2]    At the same time, it must be understood that, having accepted the responsibility of representing [the appellant], the undersigned also has a responsibility to the Court. That responsibility:

(a)    precludes advancing any argument or contention which the undersigned, exercising his independent judgment, regards as having no real prospect of success; and

(b)    requires that the evidence and material before the Court be limited to that which is relevant to arguments and contentions which the undersigned, exercising his independent judgment, regards as having some prospect of success.

[3]    It necessarily follows that this outline, and the oral submissions on behalf of [the appellant], will not necessarily traverse every argument or contention which [the appellant], if unrepresented, would wish to advance on his own behalf. Should the Court wish to hear submissions in respect of such arguments or contentions, the undersigned will do his best to assist the Court by presenting them with appropriate frankness and candour. Alternatively, the Court may choose to accept that the arguments and contentions advanced by the undersigned represent the only arguments and contentions which can properly be advanced on [the appellant’s] behalf, consistently with the obligations of the undersigned pursuant to subsection 37N(2) of the Federal Court of Australia Act 1976, as well as his ordinary professional and ethical duties.

25    I also note in this regard that, at the commencement of the Outline of Submissions and in keeping, it seems, with senior counsel’s identification of those matters which could reasonably be advanced, he indicated that he read and relied upon only a limited number of the paragraphs of the appellant’s affidavits, dated 19 February 2021, 8 April 2021 and 16 April 2021.

26    It is also pertinent to note the submission which senior counsel made at the conclusion of his submissions in reply at first instance:

I should say, because your Honour’s conscious, I know – and your Honour would have read the disclaimer at the beginning of my submissions that I’m in an awkward position choosing to make only those submissions that I regard as having foundation. My client wishes to make the point that he is – should not be regarded as an unlawful non-citizen because the decision to revoke his visa was itself unlawful in that the Minister – that the wrong Minister made it and, in any event, [it] was made on the basis of erroneous information. I highlight that that is a submission that my client wishes to make, and I say nothing further about it.

27    It is evident that the submissions of senior counsel constituted, in part, an express acceptance, and in other parts, a tacit acceptance, that many of the matters which the appellant wished to raise, did not have a reasonable foundation and could not be reasonably advanced in keeping with counsel’s obligations to the Court. It is necessary to have regard to those matters when considering the appellant’s complaint that Rangiah J did not deal with matters which he contends now should have been addressed.

28    The appellant did not structure his submissions by reference to the issues of serious issue to be tried and balance of convenience. Instead, he made a number of points, some of which seemed to bear on the serious issues to be tried aspect of the matter, others, on the balance of convenience aspect of the matter, and others which, with due respect to the appellant, were not easy to fit into the scheme of the matters to be determined by the Court.

Consideration

29    The appellant’s first submission made in oral argument was that the judgment at first instance was reasonably arguably wrong, because its effect would permit the respondent to effect the deportation of anyone from Australia, irrespective of their identity or status. That is plainly an untenable submission and one that need not be considered further.

30    A principal focus of the appellant’s submissions was his contention that Rangiah J had failed to consider the validity of the Minister’s cancellation decision of 23 February 2021. As the passages in the submissions from senior counsel indicate, this was something that was advanced by counsel as a matter of form only. Counsel did not seek to develop any submission in support of that contention, nor point to any evidence on which it could be based. The appellant submitted that this was immaterial because it was for the Minister, on an application for the issue of a writ of habeas corpus, to justify the lawfulness of the detention, irrespective of the issues which he raised.

31    The reasons of Rangiah J proceeded on the basis that the respondent did have the onus to justify the lawfulness of the detention, as his Honour referred to and cited the decisions in Minister for Immigration and Multicultural and Indigenous Affairs v Al Masri (2003) 126 FCR 54 at [176] and McHugh v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 223, (2020) 385 ALR 405. However, in considering whether the onus of proof had been discharged, it was appropriate for Rangiah J to have regard to the way in which the issues had been presented for his determination at trial: in other words, it was not necessary for Rangiah J, in effect, to explore the universe of possibilities irrespective of the evidence advanced and issues identified and then see whether each of those had been negatived. Instead, it was appropriate for his Honour to address the particular issues identified for his consideration. This was especially so given that the applicant was represented by senior counsel and because the parties had joined in asking Rangiah J to deliver judgment urgently, bearing in mind that the deportation of the appellant from Australia was planned for 21 June 2021.

32    In relation to the issues presented for determination by Rangiah J, it is pertinent to note senior counsel’s response to a question from his Honour:

 His Honour:        [A]t what point in time did his detention become unlawful?

Senior counsel:    Your Honour, there are two alternatives I have to say. The first alternative is following the detention in 2016 within a reasonable time after that to effect removal. The fallback position is within a reasonable time after he was again taken into detention on 26 February 2021.

33    In relation to the first alternative in senior counsel’s answer, I should note that Rangiah J recorded in [8] of his reasons that the appellant had ultimately not pursued a contention of unlawful detention commencing in 2016. In relation to the second alternative, which was described by senior counsel as the “fallback position”, the fact that the detention was said to have become unlawful “within a reasonable time after he was again taken into detention on 26 February 2021” is inconsistent with a position that the detention had been unlawful from the very commencement of the detention commencing on 26 February 2021, by reason that the cancellation of the visa on 23 February 2021 had been unlawful.

34    Had Rangiah J failed to address a clearly articulated contention or submission, then there may have been a case of arguable error, but in the circumstances of this case, it is not reasonably arguable that Rangiah J made an error of that kind, for the reasons which I have just given.

35    It is also pertinent to take into account that the appellant has not commenced any proceeding in this Court seeking judicial review of the Minister’s cancellation decision on 23 February 2021. That would have been an appropriate vehicle by which a challenge to the validity of the Minister’s decision, if that was to be made, could have been pursued.

36    The appellant sought to overcome this difficulty by contending that, if the appeal proceeds, he will seek the leave of the Court to advance on appeal grounds which were not advanced at first instance and, to the extent necessary, seek to adduce before the Full Court on appeal further evidence to support the additional grounds.

37    As I pointed out to the appellant during the course of the submissions, there are well developed principles concerning the circumstances in which a litigant may be permitted to advance on appeal points not taken at first instance and to introduce further evidence on the hearing of the appeal. It is not necessary to outline those principles now. It is enough to indicate that, contrary to the appellant’s expectation, there is no entitlement as of right for him to argue on appeal new grounds and to introduce new evidence. He would have to establish that it is in the interests of justice for leave to be granted for him to do so.

38    In his affidavit in support of the interlocutory application, the appellant set out, it seems for the first time, the grounds upon which he would contend that the Minister’s cancellation decision of 23 February 2021 was unlawful. These are contained in [8] and [9] of his affidavit made on 18 June 2021. At least on their face, none of the matters which the appellant there identifies seem to raise a ground of jurisdictional error. I say that because, as counsel for the respondent submitted, the Minister’s decision under s 133C of the Act is a privative clause decision and therefore amendable to review by this Court only in the event that jurisdictional error is established.

39    I am not to be understood as expressing any concluded view about the nature of the appellant’s proposed grounds. I refer to it only for the purpose for indicating my view that the grounds of review identified by the appellant are not self-evidently suggestive of jurisdictional error and therefore, of a kind which might incline the Full Court to grant leave for them to be argued and for further evidence to be adduced. The errors which the appellant wishes to argue are really in the nature of factual errors, which he says, assuming they are established, went to the fairness of the decision made by the Minister. They are not the kinds of matters which ordinarily would give rise to jurisdictional error.

40    For these reasons, I do not consider that the appellant has established a reasonably arguable error by Justice Rangiah in not dealing with the validity of the Minister’s decision to cancel the visa on 23 February 2021.

41    The appellant also emphasised that he had sought revocation of the cancellation decision in the matter contemplated by s 133F(3) and (4) of the Act. For reasons which are unexplained, that revocation application has not yet been determined by the Minister. The appellant emphasised that by an email of 24 May 2021 the Department had informed him:

Please be assured that no removal action will be taken until a determination is made in respect of the validity of your revocation application.

42    On 17 June 2021, a little under an hour before Rangiah J delivered his decision that day, the Department informed the appellant in an email that it was satisfied that he had made a valid request for revocation under s 133F of the Act. It continued by saying, however:

Please note that the revocation process will not affect any detention or removal processes, and revocation consideration will continue even if you are offshore. We will be in contact with you via email if we require any further information relevant to your revocation request.

43    The appellant was critical of a number of aspects of the respondent’s conduct in relation to his cancellation request and these emails. However, in my view, they have limited relevance to the application for the interlocutory injunction. By reason of the terms of s 198(5) of the Act, the obligation of the Department to effect the deportation of the appellant was not suspended, or even qualified, by the fact that he had sought revocation of the cancellation decision. In this respect, as Rangiah J pointed out in [44] of his reasons, s 198(5) may be anomalous.

44    The effect of s 133F(7) of the Act is that, even if the Minister had revoked the cancellation decision, it would not have had the effect that the detention from 26 February 2021 to the date of revocation became unlawful. Perhaps putting it more shortly, the validity of the appellant's detention did not turn on the omission of the Minister to determine the revocation application in a more timely way than has occurred.

45    Further, as counsel for the respondent submitted, no estoppel operates against the respondent by reason of the statement in the email of 24 May 2021.

46    It is understandable that the appellant is concerned that his request for revocation of the cancellation decision has not yet been determined. Had it been determined, and determined in his favour, then it is probable that he would have ceased to be a detainee and, therefore, ceased to have satisfied the requirement of s 198(5)(a). However, the fact that it has not been determined does not of itself affect the validity of his detention between 26 February 2021 and the present time.

47    The appellant also wished to argue a number of factual matters. For example, whether or not one of the witnesses called by the respondent had been correct in saying that he had been declined voluntary removal. Rangiah J did not determine that point and it is understandable that, even if the argument had been made to him, that he would have considered that it was not necessary to do so. That could hardly be a matter bearing upon the lawfulness or otherwise of the appellant’s detention as at 16 and 17 June 2021.

48    Turning to the second of the proposed grounds in the Notice of Appeal, the appellant submitted at some length that habeas corpus applications are ordinarily heard and determined promptly, given their very nature. He complained about the time which it had taken from 29 March 2021, when his application was filed, to 16 June 2021, when it was heard. Ground 2 alleges that this lapse of time – which he described as delay – prevented a fair hearing of his habeas corpus application.

49    The appellant is correct, on my understanding, in submitting that ordinarily courts do try to hear and determine habeas corpus applications promptly. That does not mean that there was a delay in the present case because of the lapse of just on two and a half months between the filing of the application and the hearing. Account must be taken of all relevant circumstances before categorising a lapse of time as a delay. In any event, the question is whether the lapse of time meant, reasonably arguably, that the hearing afforded to the appellant was unfair.

50    Having listened to the appellant’s submissions, I am not satisfied that the delay made the hearing unfair. On the material presently before the Court, the appellant had a reasonable opportunity to present his submissions; he had the assistance of senior counsel to do so; he had a more than ample opportunity to present to the Court all the evidence upon which he relied; and he had ample opportunity to make submissions. As indicated, his senior counsel identified in accordance with senior counsel’s professional responsibilities, those submissions which could be properly advanced. The fact that the appellant may have a different view about those submissions does not alter the fact that he was given a fair hearing. It cannot be reasonably argued in this case that the lapse of time between 29 March 2021 and 16 June 2021 prejudiced the appellant’s ability to present his case by presenting evidence and making submissions.

51    I do not regard Ground 2 as being reasonably arguable.

52    I turn, then, to Ground 3, namely, that it was manifestly unjust for an order for costs to be made. Essentially, the appellant relied upon the proposition that an application for habeas corpus is in some respects analogous to a bail application and that the ordinary principle in criminal proceedings is that costs are not awarded either for or against the prosecution or for or against an accused person.

53    The position, however, is different in habeas corpus applications. The authorities to which the respondent has referred (which included J by his litigation guardian Vardanega v Australian Capital Territory (No 2) [2011] ACTSC 36) indicate that the Court does have a discretion to award costs in a habeas corpus application. That is the effect in any event of s 43(2) of the Federal Court of Australia Act 1976 (Cth). Further, there do not seem to be any particular principles bearing upon the exercise of the discretion with respect to the award of costs in habeas corpus applications. In those circumstances, the appellant has not pointed to any reasonably arguable ground of error in relation to the costs decision.

54    I conclude therefore that the appellant has not shown that he has a prima facie case. I take the view in that circumstance that it is not necessary to address the balance of convenience.

55    For these reasons, the application for the interlocutory injunction contained in [3] of the orders sought in the Notice of Appeal is refused.

56    I add that it is not necessary for the Court to address Order 4 in the Notice of Appeal (which seeks an order restraining the appellant’s deportation this afternoon). I understood this to be consequential upon Order 3. It is not necessary to consider it both because of the decision on the application for the interlocutory injunction and because the respondent does not, in any event, have any intention to remove the appellant today.

57    I will order that the costs of today’s hearing be costs in the cause.

Associate:

Dated:    2 July 2021