Federal Court of Australia

Bethell v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 771

ORDERS

THE COURT ORDERS THAT:

1.    The application for interlocutory injunctive relief in respect of the proposed removal of Mr Bethell from Australia be dismissed.

2.    No application in respect of interlocutory injunctive relief restraining that removal be accepted for filing without the leave of the Court or a Judge first obtained.

3.    Proceeding QUD211/2021 be heard together with proceeding QUD192/2021, and case managed to that end.

4.    Costs of and incidental to the application as heard today be costs in the cause.

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

REASONS FOR JUDGMENT

(REVISED FROM TRANSCRIPT)

LOGAN J:

1    Yesterday the applicant, Mr Karl Antony Bethell (Mr Bethell) filed an originating application in this Court by which he sought the following:

1.    A Writ of Habeas Corpus; Bring the defendant before the Court to ascertain if his continued detention is lawful, and if it is found that it is not, that he be released from detention.

2.    An urgent injunction against deportation until lawfulness of detention is ascertained.

3.    An urgent order against the Minister, and compensation award, for attempting to circumnavigate the Habeas Corpus Act, by removal of the applicant.

2    It is common ground that the Minister presently proposes to remove Mr Bethell from Australia to the United Kingdom on 21 July 2021. Mr Bethell is a citizen of the United Kingdom.

3    The current proceeding does have a provenance. That is recited, at least up to and including 29 June 2021, in an interlocutory judgment delivered on that date by Jackson J in a separate proceeding instituted by Mr Bethell, QUD192/2021: see Bethell v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 727 (Bethell v Minister).

4    Mr Bethell entered Australia lawfully on a Temporary Worker Visa issued under the Migration Act 1958 (Cth) (the Act). That visa was cancelled on 10 November 2016. At that time, Mr Bethell was in prison in Queensland. He was taken into immigration detention on 15 November 2019 after being removed from the custody of Queensland corrective services authorities. Earlier this year, on 15 January 2021, Mr Bethell was granted a bridging visa. As it should have, the grant of that visa occasioned his release from immigration detention.

5    On 23 February 2021, the then Minister, the Honourable Alex Hawke MP, acting personally, cancelled that bridging visa, pursuant to s 113C(3) of the Act. A sequel to that was that Mr Bethell was returned to immigration detention on 26 February 2021. There has been much litigation in this Court, and also in the Federal Circuit Court of Australia (Federal Circuit Court) since then concerning the legality of that detention.

6    On 29 March 2021, Mr Bethell filed an originating application QUD95/2021 by which he sought a writ of habeas corpus. That application was heard by Rangiah J on 16 June 2021. The following day, his Honour dismissed that application with costs: see Bethell v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 661.

7    The following day, Mr Bethell lodged another application for habeas corpus, which commenced proceeding QUD192/2021. By paragraph 2 of that application he sought interlocutory injunctive relief restraining his removal. That application was heard on 28 June 2021 and the following day dismissed: see Bethell v Minister.

8    Another event of note occurred on 18 June 2021. Mr Bethell filed that day an appeal against the orders made by Rangiah J. He also sought an injunction to prevent his removal from Australia before the determination of the appeal. That application for an injunction was heard by White J on 21 June 2021 and dismissed that day.

[At this point, Mr Bethell interrupted and was requested by me not to interrupt me when I was delivering judgment. He was informed by me that, if he did that again, “I’m afraid I shall have just the link severed. I do not wish to be interrupted”. Delivery of reasons for judgment then resumed.]

9    On 21 June 2021, Mr Bethell also filed in the Federal Circuit Court an application for an extension of time, within which to seek the judicial review of the cancellation by the Minister on 23 February 2021 of his bridging visa. That application in that Court was also the subject of an application for an interlocutory injunction restraining Mr Bethell’s removal from Australia. On 22 June 2021, the Federal Circuit Court dismissed the interlocutory injunction application on the basis that it raised no serious question to be tried: see Bethell v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 1429.

[At this point, Mr Bethell again interrupted. I stated to him:

“Mr Bethell, I have already warned you once as to what may be the consequence of an interruption. If you interrupt again I shall sever the link, continue delivering reasons for judgment and they will be sent to you in due course. Do you understand that? You must keep silent. “

Before delivery of reasons for judgment could be resumed, Mr Bethell again interrupted, declining to keep silent. I stated that, in light of the repeated interruptions, I had “formed the view that he was a disruptive influence in respect of the delivery of a judgment”, that I would continue delivering reasons for judgment and that they would be sent to him in due course. Having so done, I directed the audio-visual link to the detention facility to be severed. It was severed. I then continued to deliver reasons for judgment.]

10    The present application, then, is not for the substantive hearing of Mr Bethell’s originating application filed yesterday, but rather, for whether or not an interlocutory injunction should be made.

11    In the course of the submissions made on behalf of the Minister by his counsel, application was made on behalf of the Minister for an order under s 23 of the Federal Court of Australia Act 1976 (Cth) (Federal Court Act) that, having regard to the history of litigation just recited and its outcome, an order should be made restraining the filing of any further such application by Mr Bethell. Reliance on s 37AO of the Federal Court Act was disavowed. I extended to Mr Bethell an opportunity to make any submission that he chose in reply to that. Indeed, I made it as explicit as I could that that opportunity was extended to him. He made such submissions as he chose in that regard, although, with all due respect, it must be said that the substance of them was a repetition of his contention that he was entitled to go from judge to judge seeking habeas corpus.

12    The Minister relied upon an affidavit made by an officer of his department, Ms Jackson. Within the Minster’s department, she has a present responsibility in relation to Mr Bethell’s detention. By that affidavit, Ms Jackson deposed that she held the office of what is known within the department as a “status resolution officer”. Part of that role, she deposed, was to consider whether individuals in detention are unlawful non-citizens for the purposes of s 189 of the Act. Her understanding is that, if she knows or holds a reasonable suspicion that a person is an unlawful non-citizen, she must detain that person or call on someone else to detain that person. She also deposed that, if she no longer held a reasonable suspicion as to a person being an unlawful non-citizen or knowledge of that fact, she was required to take steps to have the person concerned, here, Mr Bethell, released from immigration detention.

13    Ms Jackson further deposed that she had taken over particular responsibilities in relation to Mr Bethell from another officer on 24 June 2021 and had, for that purpose, reviewed the department’s record concerning Mr Bethell and his immigration status. The particular record is annexed to her affidavit. It is, on its face, a record prepared in the ordinary course of public administration. Ms Jackson has deposed that:

Based on my review of the records held by the Department, I have been satisfied that the applicant is an unlawful non-citizen because:

9.1     There is no evidence that the applicant is an Australian citizen because he was not born in Australia and has never lodged an application for Australian citizenship.

9.2    The applicant does not hold a valid visa that is in effect because his WE-050 Bridging Visa E was cancelled under s 133C(3) on 23 February 2021 and no further visa has been granted.

9.3    The applicant is not an Australian Aboriginal or Torres Strait Islander person within the meaning of tripartite tests. This is because the applicant informed the Department on 27 February 2021 that he does not self-identify as an Aboriginal or Torres Strait Islander person.

14    Ms Jackson further deposed that, as a result, she has caused Mr Bethell to be detained and that she has done so by not taking steps to have him released from his present immigration detention.

15    The obligation to detain is found in s 189 of the Act which 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.

(2)    If an officer reasonably suspects that a person in Australia but outside the migration zone:

(a)    is seeking to enter the migration zone (other than an excised offshore place); and

  (b)    would, if in the migration zone, be an unlawful non-citizen;

the officer may detain the person.

(3)    If an officer knows or reasonably suspects that a person (other than a person referred to in subsection (3A)) in an excised offshore place is an unlawful non-citizen, the officer must detain the person.

(3A)    If an officer knows or reasonably suspects that a person in a protected area:

(a)    is a citizen of Papua New Guinea; and

(b)    is an unlawful non-citizen;

the officer may detain the person.

(4)    If an officer reasonably suspects that a person in Australia but outside the migration zone:

(a)    is seeking to enter an excised offshore place; and

(b)    would, if in the migration zone, be an unlawful non-citizen;

the officer may detain the person.

(5)    In subsections (3), (3A) and (4) and any other provisions of this Act that relate to those subsections, officer means an officer within the meaning of section 5, and includes a member of the Australian Defence Force.

Note:    See Subdivision B for the Minister's power to determine that people who are required or permitted by this section to be detained may reside at places not covered by the definition of immigration detention in subsection 5(1).

16    Two terms in particular within that section are presently pertinent: “unlawful non-citizen” which is defined in s 14 of the Act and “lawful non-citizen” which is defined in s 13 of the Act. Suffice to say, the effect of these sections is that an unlawful non-citizen is a non-citizen who is not a lawful non-citizen. In turn, a lawful non-citizen is a non-citizen who holds a visa that is in effect.

17    Ms Jackson’s subjective opinion alone as to her suspecting that Mr Bethell is an unlawful non-citizen is not in itself determinative. Lord Atkin’s dissenting speech in Liversidge v Anderson [1942] AC 206, which stands for the insufficiency of a subjective suspicion in relation to a provision of this type is now regarded in this country as good law: see George v Rockett (1990) 170 CLR 104, as for that matter, it is elsewhere in the common law world. However, in the context of whether there is presently a serious question to be tried, and having regard to Ms Jackson’s affidavit and the departmental record annexed there to, together with the apparently uncontested facts of cancellation of the bridging visa as referred to in Mr Bethell’s affidavit read today, it seems to me the requisite reasonable foundation is present. It is present at least to the extent of establishing that there is no serious question to be tried in relation to the absence of the requisite reasonable suspicion. Thus, there is not, in my view, a serious question to be tried in relation to whether, presently, there is no lawful authority under s 189 of the Act for Mr Bethell’s detention.

18    Mr Bethell has, it seems, made application for the revocation of that cancellation but, at present, there has been no revocation. That being so, he is a non-citizen of Australia who has no visa which is in effect.

19    The absence of any serious question to be tried, in itself, would be sufficient reason to refuse interlocutory injunctive relief. The principles in relation to whether to grant such relief were canvased by Jackson J in his Honour’s earlier judgment. As is there revealed, ultimately such principles are derived from the High Court of Australia’s judgment in Australian Broadcasting Corporation v O’Neill (2006) 227 CLR 57, at [19]. Even were Mr Bethell to succeed in his application presently before the Federal Circuit Court for an extension of time within which to challenge on judicial review the cancellation of his bridging visa, that would not alter the present position, which is that there is a basis for, as Ms Jackson deposes, a reasonable suspicion as to his being a non-citizen because he has no present visa.

20    There is another reason why, in any event, I would not be disposed to grant interlocutory injunctive relief. There was no particular fact which emerged today of any relevance which would, in any way, alter the position as it stood before Jackson J when his Honour entertained, considered, and dismissed the application for injunctive relief. Having regard to the Full Court’s judgment in Vasiljkovic v The Honourable Brendan O’Connor (No 2) [2011] FCAFC 125 (Vasiljkovic) in particular, his Honour formed the view that it was open in the context even of an application for habeas corpus where such relief was sort to prevent that abuse of the Court’s process. As was his Honour, I am bound by the Full Court’s judgment.

21    Mr Bethell saw, in the present proceeding being heard in Queensland, as opposed to Vasiljkovic, which had been heard in New South Wales in the original jurisdiction, a distinguishing feature. That distinguishing feature arose, he submitted, from the way in which, in the respect of the States, the English Habeas Corpus Acts had been incorporated into State law.

22    In Queensland, the relevant Act is the Imperial Acts Application Act 1984 (Qld) (Application Act). Section 5 of the Application Act provides that each Imperial enactment specified in schedule 1 shall, from the commencement of that Act, continue to have the same force and effect if any as it had in Queensland immediately prior to the commencement of that act.

23    As can be seen from s 5, the apparent purpose of that provision is the avoidance of any doubt as to the application of particular Imperial enactments in Queensland. Within schedule 1, the following are presently relevant: at item 7, (1640) 16 Charles I chapter 10 Habeas Corpus Act 1640, section 6; at item 8, (1679) 31 Charles II chapter 2 Habeas Corpus Act 1679, sections 1 to 8, 11, 15 to 19; and, at item 17, (1816) 56 George III chapter 100 Habeas Corpus Act 1816. As to habeas corpus, it is necessary to remember that the Federal Court, whilst it does have a broad general civil jurisdiction in respect of any matter arising under a law of the parliament, see s 39B(1A)(c) of the Judiciary Act 1903 (Cth) (Judiciary Act), and whilst it is a superior court of law and equity, is nonetheless not a superior court of general jurisdiction in the same way in which are the superior courts of the respective States.

24    It is also necessary not to confuse jurisdiction and power. The position, with respect, was neatly summarised by Allsop CJ in his judgment in McHugh v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2020) 385 ALR 405, at [21], where, in expressing his concurrence with views expressed in that case by Mortimer J, the Chief Justice stated:

[21]    Whilst the Court has necessary implied jurisdiction as an incident of the general grant to the Court as a superior court of law and equity to deal with matters before it: Jackson v Sterling Industries Ltd (1987) 162 CLR 612; 71 ALR 457, it does not have the broad scope of inherent jurisdiction of the sovereign’s superior courts in England. This fact helps one to recognise the inappropriateness of referring to jurisdiction to entertain habeas corpus. As a writ or remedy it is an incident of the exercise (if appropriate to be exercised) of the Court’s jurisdiction, otherwise conferred. On the other hand, a court that has jurisdiction to entertain any controversy about the liberty of a subject in any circumstances (public or private) may employ the writ, as a remedy, in that wide inherent jurisdiction, to vindicate the subject’s general right to be free of unlawful detention. This Court, with statutory (including any implied) jurisdiction has authority (from that jurisdiction) and power (from s 23) to issue the writ of habeas corpus, if it be an appropriate remedy (interlocutory in character) within or incidental to the resolution of the controversy (the matter) before the Court and in respect of which it has jurisdiction. I respectfully agree with the analysis of Deane J in Re Offıcer in Charge of Cells, ACT Supreme Court; Ex parte Eastman (1994) 123 ALR 478, and with what Mortimer J has written in her Honour’s reasons in this regard.

[emphasis in original]

25    I have read Mr Bethell’s originating application as amongst other things, seeking to institute a claim for damages for false imprisonment. In relation to that, he has sought a writ of relief in the nature of a writ for habeas corpus. I have assumed that as premised upon an element of his cause of action for false imprisonment, namely, at least by implication, a declaration that he has been unlawfully detained. On that basis, I have no doubt that there is power to issue a writ of habeas corpus.

26    It would, however, be a mistake - but it does seem, with respect, to be a mistake under which Mr Bethell is labouring - to assume that all of the old jurisprudence which applies in relation to an ability to seek habeas corpus from successive judges is applicable in an unqualified way in relation to a proceeding in this Court.

27    Of the habeas corpus statutes incorporated in State law by the Application Act, it would seem to me, as presently advised, that the incorporation of the Habeas Corpus Act 1640, section 6 is applicable in relation to a civil proceeding concerning detention with the Habeas Corpus Act 1679 being applicable in respect of detention or imprisonment in the criminal jurisdiction. There is a very useful summation of the practice and procedure applicable in Atkin’s Court Forms Vol 14 titled Crown Practice, Section B: Habeas Corpus and Subjiciendum, pages 7 and following. It is not necessary for today to expand on that practice. It seems to me that s 79(1) of the Judiciary Act would operate insofar as not inconsistent with the Constitution or a Federal statute so as to pick up State law, materially the Application Act, and via that, the habeas corpus statutes mentioned. Further, the source of jurisdiction here seems to me to be a matter arising under an Act namely, the Migration Act.

28    However this maybe, in respect of whether Mr Bethell’s present detention is unlawful, for the reasons which I have given, I am not at all persuaded that there is any serious question to be tried such that there should be a restraint on his removal from Australia. Further, that he has earlier sought, more than once - and in effect, on the same basis - such a restraint, does persuade me that the present application ought also to be dismissed on the basis that it is an abuse of process. As indicated, Vasiljkovic is binding and I see no relevant basis for distinguishing it based on the fact this proceeding is being heard in Queensland.

29    I am also persuaded that the Court does have power to make an order which would restrain the filing - either in the present application or in any further application for habeas corpus or compensation in relation to detention – of a further application for interlocutory injunctive relief in respect of removal without the leave of the court or a judge. That power, in my view, is to be found, as was put for the Minister, in s 23 of the Federal Court Act, and in the observations made concerning that power in Jackson v Sterling Industries Limited (1987) 162 CLR 612.

30    It also seems to me that, whatever might otherwise be the position in relation to habeas corpus and applications for interlocutory injunctive relief seeking a restraint on removal pending the hearing, the general provision in s 37M and s 37N of the Federal Court Act is pertinent. Litigants, whether represented or not, have an overarching duty to cooperate in the administration of justice. Repeated applications for interlocutory injunctive relief which have already been refused, where there is no change in factual circumstances of any material quality, are truly an abuse of process.

31    It also seems to me that it is desirable, so far as any substantive hearing is concerned, that the present proceeding be heard together with the proceeding QUD192/2021. The issues are factually identical and, further, the only addition in the present proceeding is a claim for compensation, which conveniently could be dealt with at the same time as the earlier filed proceeding. Indeed, the fate of each in turn may well be determined by the fate of the appeal against the orders made by Rangiah J. So a further order I make today is that proceeding QUD211/2021 be heard together with proceeding QUD192/2021 and case managed to that end.

32    For the reasons given, therefore, I dismiss the application for interlocutory injunctive relief in respect of the proposed removal of Mr Bethell from Australia. I also order that no further application in respect of interlocutory injunctive relief restraining that removal be accepted for filing without the leave of the court or a judge first obtained. I also make the order indicated in relation to the two proceedings being heard together.

33    I order that the costs of and incidental to the applications heard today be costs in the cause.

Associate:    

Dated:    7 July 2021