Federal Court of Australia

Bethell v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (No 3) [2021] FCA 811

ORDERS

THE COURT ORDERS THAT:

1.    The application in QUD 192 of 2021 be dismissed, with costs to be taxed if not otherwise agreed.

2.    The application in QUD 211 of 2021 be dismissed, with costs to be taxed if not otherwise agreed.

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

REASONS FOR JUDGMENT

COLLIER J:

1    Before the Court are two applications brought by the same applicant, Mr Karl Bethell.

2    For decision in respect of the proceeding in QUD 192 of 2021 is para 1 of the application filed by Mr Bethell on 18 June 2021 in which Mr Bethell seeks the following order:

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 it is not, that he be released from detention.

3    For decision in respect of the proceeding in QUD 211 of 2021 are paras 1 and 3 of the application filed by Mr Bethell on 29 June 2021 in which Mr Bethell seeks the following orders:

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 it is not, that he be released from detention.

…

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

4    When the matter came before me for case management yesterday morning, after noting as a general proposition the urgency of an application for a writ of habeas corpus, and (I understand) the prospect that Mr Bethell is due to be removed from Australia on 20 July 2021, I ordered that the proceeding be listed for hearing at 2.30pm yesterday afternoon. Mr Bethell had already sought to file submissions, and I ordered those submissions to be filed. At the hearing yesterday Mr Bethell stated that he had forwarded further submissions to the Court, and I also ordered those supplementary submissions to be filed.

5    Mr Bethell appeared in person yesterday. The Minister was represented by Counsel, who made oral submissions.

6    The Minister called as a witness Ms Natalie Jackson, a Team Leader in the Queensland Detention Status Resolution Team within the Department of Home Affairs, and relied on Ms Jacksons affidavit affirmed 13 July 2021. Mr Bethell cross-examined Ms Jackson at the hearing.

7    The Minister also relied on an affidavit of Mr Nicholas Orchard Stephan, which I gave leave for the Minister to file.

8    Mr Bethell did not call any witnesses, although he stated at the hearing (at transcript p 31 ll 7-11):

Your Honour, this – it seems somewhat unfair that I’ve not been allowed to prepare – I’ve not been allowed to get the witnesses I want and yet there’s somebody here who is saying that – at 113.2:

The applicant does not hold a valid visa –

9    I note from subsequent examination of the Court file in these proceedings that an email was apparently sent by Mr Bethell at 2.21pm yesterday to the Minister’s lawyers, copying the Registry of the Federal Court of Australia, in which he stated that he would likely need to call a number of witnesses. However, insofar as I am aware, no application was made by Mr Bethell to call any witnesses, and no witnesses were at Court yesterday to give evidence on his behalf.

10    After hearing the parties over several hours, I reserved my decision until 11.00am today.

11    Last night after Court adjourned, I understand that the Registry received an email from Mr Bethell, sent at 6.38pm. In his email Mr Bethell wrote:

Dear Registrar

Could you please request Her Honour to re-open the matter for further submissions. I think it was likely beyond the capacity of an experienced legal professional to wing such a matter. It was certainly well beyond my capacity.

Thus several items where [sic] missed; the whole subject of delay; and the law regarding attempts to move someone out of the jurisdiction during Habeas was not properly placed or considered.

That was 50% of the applications purpose.

12    This email was forwarded to my Chambers this morning. I directed the Registry to ascertain the availability of the parties to return to Court at 10.30am.

13    Once judgment has been reserved, it is only in exceptional circumstances that the Court will subsequently give leave to a party to re-open the case. As Heydon J observed in Eastman v Director of Public Prosecutions of the Australian Capital Territory (2003) 214 CLR 318 at 330:

Parties to matters before the Court need to understand that, once a hearing in the Court has concluded, only in very exceptional circumstances, if at all, will the Court later give leave to a party to supplement submissions. Parties have a legal right to present their arguments at the hearing. If a new point arises at the hearing, the Court will usually give leave to the parties to file further written submissions within a short period of the hearing ordinarily seven to fourteen days. But a party has no legal right to continue to put submissions to the Court after the hearing. In so far as the rules of natural justice require that a party be given an opportunity to put his or her case, that opportunity is given at the hearing.

14    I note, however, that Mr Bethell is a litigant in person, seeking relief of the utmost seriousness. This morning I directed that Court resume prior to the time at which I had intended to deliver judgment, to permit Mr Bethell to make further submissions, including in respect of costs. I also permitted Counsel for the Minister to make further submissions.

15    After considering the submissions of the parties and the material before the Court I find that Mr Bethell’s applications for the issue of writs of habeas corpus should be dismissed.

16    Before explaining the reasons for this decision it is appropriate to set out the procedural history to these matters.

Procedural history

17    Mr Bethell is a citizen of the United Kingdom. He entered Australia lawfully on a Temporary Work Visa issued under the Migration Act 1958 (Cth) (Migration Act). That visa was cancelled on 10 November 2016 under s 116(1)(e)(ii) of the Migration Act. 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. The grant of that visa occasioned his release from immigration detention.

18    On 23 February 2021, the then Minister, acting personally, cancelled Mr Bethell’s bridging visa pursuant to s 133C(3) of the Act. Mr Bethell was returned to immigration detention on 26 February 2021.

19    Although I am concerned in this judgment with particular paragraphs in the originating applications presently before me, I note that the balance of the relief sought in each of those originating applications has already been considered and determined by other judges of this Court.

20    The background to these matters was helpfully set out in the judgments of Logan J and Jackson J, and also in the affidavit of Nicholas Orchard Stephan affirmed on 15 July 2021.

21    On 17 June 2021, Rangiah J delivered judgment in a separate Federal Court matter, QUD 95 of 2021, where Mr Bethell sought an issue of the writ of habeas corpus.

22    On 18 June 2021, Mr Bethell filed an appeal from that judgment commencing a new matter QUD 191 of 2021. In that application he sought an interlocutory injunction preventing his removal pending the outcome of the appeal. On the same day, Mr Bethell lodged with the Court a second application for the issue of the writ of habeas corpus which was accepted for filing on 22 June 2021, QUD 192 of 2021. In the application of QUD 192 of 2021, Mr Bethell sought “an urgent injunction against deportation until lawfulness of detention is ascertained.”

23    On 21 June 2021, White J heard Mr Bethell’s application for the interlocutory injunction in QUD 191 of 2021. In an ex tempore decision, White J refused to grant the injunction.

24    On 22 June 2021, in the Federal Circuit Court of Australia Mr Bethell filed an application for an extension of time to make an application for review of the respondent’s personal decision of 23 February 2021 to cancel the bridging visa held by Mr Bethell under s 133C of the Migration Act. In that application Mr Bethell also sought interlocutory injunctions preventing his removal until that application was determined and releasing him from immigration detention. Judge Lucev heard the applications for interlocutory injections on 22 June 2021 and in an ex tempore decision, refused to grant the injunctions sought.

25    On 22 June 2021, Mr Bethell’s application in QUD 192 of 2021 for the issue of a writ of habeas corpus and related relief was accepted for filing in this Court. Paragraph 2 of the orders sought by Mr Bethell in the originating application in QUD 192 of 2021 was in the following terms:

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

26    On 28 June 2021 Jackson J heard Mr Bethell’s application for an urgent injunction in QUD 192 of 2021. On 29 June 2021, Jackson J refused Mr Bethell’s application for an interlocutory injunction preventing his removal from Australia: Bethell v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 727.

27    On 30 June 2021, Mr Bethell filed another application for the issue of a writ of habeas corpus, this time in QUD 211 of 2021.

28    Paragraph 2 of the orders sought by Mr Bethell in QUD 211 of 2021 was:

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

29    On 1 July 2021, Logan J made the following orders in Bethell v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 771.

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

Findings in previous matters

Proceedings before Justice Rangiah

30    Before Rangiah J Mr Bethell sought the issue of a writ of habeas corpus. Mr Bethell was represented pro bono by Senior Counsel in the proceedings before his Honour.

31    His Honour noted that habeas corpus was an appropriate form of relief to be sought for unlawful executive detention. His Honour discussed in detail the decision of the Federal Court in AJL20 v Commonwealth of Australia [2020] FCA 1305, noting that (at that time) the High Court of Australia had heard an appeal against AJL20 but reserved its judgment.

32    His Honour continued:

20.    The onus of proof in an application for habeas corpus was considered in Minister for Immigration and Multicultural and Indigenous Affairs v Al Masri (2003) 126 FCR 54. The Full Court held at [176]:

…[I]t is for the applicant to adduce evidence that puts in issue the legality of detention, and then the burden shifts to the respondent to show that detention is lawful, and may be discharged on the balance of probabilities.

21.    In McHugh v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2020) 385 ALR 405, Allsop CJ observed at [60]:

…Another way of expressing the question is whether the party seeking relief has shown a case fit to be considered by the court: Ex parte Khawaja at AC 111 (also cited in Yoxon at [39]). The necessity not to define precisely or overly finely in the abstract what has to be proved by the applicant can be appreciated if one recognises that in respect of some detentions (such as in Al Masri which concerned the possible exhaustion of the Constitutional purpose of the power to detain or, as here, where the detention is based on a mental state of the detainer required to be reasonably founded) the incidents or aspects of the lawfulness of the detention are within the knowledge and power of proof of the detainer: cf Blatch v Archer (1774) 1 Cowp 63 at 65; 98 ER 969 at 970 to the effect that evidence is to be weighed according to the proof which it was in the power of one side to produce and the other to contradict.

22.    The respondent does not dispute that the applicant has adduced sufficient evidence to put in issue the legality of his detention, and accepts that the burden has shifted to the respondent to show that detention is lawful.

23.    In McHugh, Allsop CJ noted at [57] that the importance of the issue of personal liberty requires “clear and cogent” proof.

24.    In an application for habeas corpus, the issue is whether the applicant’s current detention is unlawful, not whether his or her detention has been unlawful in the past: McHugh at [288]; Murray v Director-General Health & Community Services Victoria (unreported, Supreme Court of Victoria, Eames J, 23 June 1995) at 32.

25.    Bearing these matters in mind, the 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.

33    After examining the processes in which Departmental officers had engaged relating to the planned removal of Mr Bethell from Australia, his Honour continued:

50.    I was not taken to any cases which have directly decided whether a permissible purpose once lost can be regained. The issue identified by Bromberg J in AJL20 at [89], by reference to Plaintiff S4/2014, focusses on whether there has been a departure from the permissible purpose of detention. The enquiry is not directly whether there has been a failure to remove a person as soon as reasonably practicable, but whether there has been departure from that purpose. Once there has been such a departure, the detention becomes unlawful. However, the idea that once there has been a departure, it is irrelevant that the purpose is regained, is inconsistent with the requirement that in an application for habeas corpus the detention must be unlawful at the current time. If the current purpose is to remove the person as soon as reasonably practicable, then that is a permissible purpose of detention, and detention is not unlawful. This would not leave a person without a remedy in respect of an earlier period where the purpose was departed from, but the remedy may be damages for false imprisonment, not habeas corpus.

51.    As a matter of construction of ss 196 and 198 of the Act, it is unlikely that it was intended that once the purpose of removal as soon as reasonably practicable is departed from, it is lost forever for the purposes of the lawfulness of detention. Such a construction would mean that, if released, a person who is not willing to be removed, could not later be removed, since they could not be detained in order to effect their removal. That would be inconsistent with the scheme of the Act which distinguishes between lawful non-citizens and unlawful non-citizens and usually requires those in the latter category to be detained until, relevantly, they are removed: cf Plaintiff M76/2013 v Minister for Immigration, Multicultural Affairs and Citizenship & Ors (2013) 251 CLR 322 at [118].

52.    Even if, contrary to my finding, it was reasonably practicable to have removed the applicant between 26 February 2021 and mid-May 2021 and the purpose of detention had been departed from, that purpose has been regained. In my opinion, the current detention of the applicant is not unlawful.

34    Accordingly his Honour refused to issue a writ of habeas corpus.

Proceedings before Justice White

35    Mr Bethell appealed the decision of Rangiah J: proceeding QUD 191 of 2021. In QUD 191 of 2021 Mr Bethell sought an urgent interlocutory injunction to restrain the Minister from deporting him from Australia pending the hearing and determination of his appeal from the decision of Rangiah J.

36    Mr Bethell argued that his detention was unlawful because he had not been removed from Australia as soon as reasonably practicable. Justice White noted that Rangiah J had rejected that argument.

37    Mr Bethell argued that the effect of the judgment of Rangiah J was that its effect would permit the respondent to effect the deportation of anyone from Australia, irrespective of their identity or status. Justice White concluded that this was an untenable submission and one that need not be considered further [at 29].

38    Justice White considered arguments which had been put to Rangiah J by Counsel for Mr Bethell, and concluded that, for the purposes of the interlocutory application before the Court, Rangiah J had not failed to address a clearly articulated contention or submission. His Honour also concluded that the appellant had not established a reasonably arguable error by Rangiah J in not dealing with the validity of the Minister’s decision to cancel the visa on 23 February 2021. His Honour continued:

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.

39    In respect of Mr Bethell’s arguments concerning delay of the hearing before Rangiah J, his Honour said:

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.

40    In respect of the award of costs by Rangiah J against Mr Bethell, White J observed:

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.

41    Justice White accordingly refused the application for the interlocutory injunction sought by Mr Bethell.

Proceedings before Justice Jackson

42    In the proceedings before Justice Jackson, his Honour noted that Mr Bethell faced a difficulty in his application for a writ of habeas corpus in that he had made an application for identical relief to Rangiah J, and sought to lodge the application before Jackson J the very day that Rangiah J dismissed the first application. Justice Jackson noted the submission of Mr Bethell that he was entitled to go from one court to another in seeking a writ of habeas corpus, but also noted the potential application of doctrines which frequently stand in the way of repeating an application made previously, namely res judicata, Anshun estoppel and abuse of process. His Honour said:

26.    In any event, there is authority in this court, which I am required to follow, to the effect that those doctrines can apply to applications for habeas corpus. That authority is the decision of Vasiljkovic v Honourable Brendan O'Connor [2010] FCA 1246; (2010) 276 ALR 326 (Vasiljkovic 1st Instance) together with the Full Court decision in which it was upheld, Vasiljkovic v The Honourable Brendan O'Connor (No 2) [2011] FCAFC 125 (Vasiljkovic FC). The applicant in that case was arrested with a view to extraditing him to Croatia. The ensuing procedural history was extremely involved; I will only describe the aspects of it that are relevant to the present issue. Mr Vasiljkovic applied to this court for review of a decision of a magistrate that he was eligible for surrender to the Republic of Croatia. That application was dismissed, an appeal by Mr Vasiljkovic to the Full Court was successful, but the High Court overturned that, and Mr Vasiljkovic was returned to prison. He then filed the application which came before Edmonds J. It sought, relevantly, a declaration that Mr Vasiljkovic's detention was unlawful, and an order in the nature of a writ of habeas corpus. The Minister sought summary judgment on various grounds, including that the application for habeas corpus was precluded by the outcome of the earlier review decision in the High Court, because both the High Court's decision and the application before Edmonds J turned on the lawfulness of Mr Vasiljkovic's detention.

27.     Edmonds J granted summary judgment on several grounds. One was that the substance of both the review proceeding and the habeas corpus proceeding was the same: a challenge to the legality of the instrument that authorises Mr Vasiljkovic's detention (at [58]). Thus, res judicata precluded the new proceeding (at [60]). Also, Mr Vasiljkovic sought to raise new issues that were closely connected with the review proceeding and were not, but should have been, litigated in the review proceeding, so Anshun estoppel prevented him from raising them (at [73]). Also, to the extent that Mr Vasiljkovic was seeking to reargue the very matter decided adversely against him in the previous proceeding (at [76]), or that he was wanting to argue a different case (at [77]), he was seeking an outcome that would conflict with the previous decision in the review proceeding, and this was an abuse of process (at [83]).

28.    In Vasiljkovic FC the Full Court unanimously dismissed the applicant's appeal, and in emphatic terms. At [16], after describing the grounds just mentioned, Jessup J (with whom Keane CJ and Dowsett J agreed) said:

The primary Judge upheld the respondents' motion on all the grounds referred to above. Save for the matters briefly raised on behalf of the appellant to which I shall refer presently, it was not submitted on his behalf that his Honour had been in error in relevant respects. In my opinion, and with respect to the grounds referred to in the previous paragraph, this was a very clear case for the exercise of the power with which the court is invested under both s 31A of the Federal Court Act and O 20 r 5 of the Rules of Court. Nothing put on behalf of the appellant, and nothing which the material before us otherwise discloses, gives rise to a scintilla of doubt as to the correctness of his Honour's disposition of the respondents' motion.

29.    That dictum was not the ratio decidendi of the Full Court's decision, given that those grounds appear not to have been argued before it. It is also true that neither the Full Court nor Edmonds J had their attention drawn to the Eshugbati Eleko line of authority. But the emphatic way in which the Full Court agreed with Edmonds J's conclusions on those points means, in my view, that I must accept those conclusions. Res judicata, Anshun estoppel and abuse of process may be raised in answer to an application for habeas corpus.

43    Justice Jackson noted that Mr Bethell sought to distinguish Vasiljkovic on various grounds and after considering those arguments continued:

35.    All that said, the fact that the judges in the Vasiljkovic decisions were not taken to the Eshugbayi Eleko line of authority means that I would prefer to rest my decision in this case on the ground of abuse of process. The availability of that doctrine in a case like the present is confirmed by Censori v Adult Parole Board of Victoria [2015] VSCA 254; (2015) 254 A Crim R 455. That case concerned a provision of the Supreme Court (General Civil Procedure) Rules 2005 (Vic) rules which modified the 'old rule'. However the Court of Appeal recognised at [60] that even setting that statutory provision to one side, considerations of abuse of process may still come into play, 'albeit that allowances are to be made for the fact that the proceeding involves the liberty of the subject'. With respect, that view is consistent with first principles. The power of the courts to suppress any abuses of its process is inherent in the court's powers to act effectively within its jurisdiction: see Connelly v Director of Public Prosecutions [1964] AC 1254 at 1301 quoted with approval in Williams v Spautz (1992) 174 CLR 509 at 518. As the court noted in Censori, derogation from the court's inherent powers to protect its own processes would require statutory words of the utmost clarity (at [60]). At [62] the Court of Appeal approved Vasiljkovic 1st Instance.

35.    In short, I consider that any proposition that habeas corpus is in some special category which prevents the court from restraining abuses of its process to be incorrect.

44    In respect of principles of abuse of process, his Honour referred to the decision of the High Court in Tomlinson v Ramsey Food Processing Pty Limited [2015] HCA 28; (2015) 256 CLR 507 at [24]-[26], in particular the following passages:

To explain contemporary adherence to the comparatively narrow principle in Ramsay v Pigram, it is appropriate also to explain the relationship between the doctrine of estoppel and the doctrine of abuse of process as it has since come to be recognised and applied in Australia. The doctrine of abuse of process is informed in part by similar considerations of finality and fairness. Applied to the assertion of rights or obligations, or to the raising of issues in successive proceedings, it overlaps with the doctrine of estoppel. Thus, the assertion of a right or obligation, or the raising of an issue of fact or law, in a subsequent proceeding can be simultaneously: (1) the subject of an estoppel which has resulted from a final judgment in an earlier proceeding; and (2) conduct which constitutes an abuse of process in the subsequent proceeding.

Abuse of process, which may be invoked in areas in which estoppels also apply, is inherently broader and more flexible than estoppel. Although insusceptible of a formulation which comprises closed categories, abuse of process is capable of application in any circumstances in which the use of a court's procedures would be unjustifiably oppressive to a party or would bring the administration of justice into disrepute. It can for that reason be available to relieve against injustice to a party or impairment to the system of administration of justice which might otherwise be occasioned in circumstances where a party to a subsequent proceeding is not bound by an estoppel.

Accordingly, it has been recognised that making a claim or raising an issue which was made or raised and determined in an earlier proceeding, or which ought reasonably to have been made or raised for determination in that earlier proceeding, can constitute an abuse of process even where the earlier proceeding might not have given rise to an estoppel. Similarly, it has been recognised that making such a claim or raising such an issue can constitute an abuse of process where the party seeking to make the claim or to raise the issue in the later proceeding was neither a party to that earlier proceeding, nor the privy of a party to that earlier proceeding, and therefore could not be precluded by an estoppel.

(footnotes omitted)

45    His Honour said:

38.    Applying these principles, it appears to me that this proceeding is an abuse of process. In my view, that is clear enough to negative any serious question to be tried, even allowing for the fact that the proceeding concerns the liberty of an individual. Mr Bethell lost an application for habeas corpus on 17 June 2021 and tried to commence a new one on 18 June 2021. It is hardly to be supposed that any new facts have emerged in the day (or less) between the two applications, and Mr Bethell did not suggest that any did. To the extent that any of the matters on which he now seeks to rely were already raised in QUD 95 of 2021, to try to relitigate them now - almost immediately after they were decided against him, with no change in position or new facts coming to light - is an abuse.

46    In relation to the proceedings before Rangiah J where Mr Bethell was represented pro bono by Senior Counsel, Jackson J observed:

41.    To the extent that the matters on which Mr Bethell now seeks to rely were not raised, it is an abuse to seek to do so now. Since no circumstances have changed, Mr Bethell is raising issues which ought reasonably to have been made or raised for determination in QUD 95 of 2021. Worse, they were raised, after a fashion. Mr Bethell was represented by Anthony Morris QC, acting pro bono, in that proceeding. In his written submissions dated 5 May 2021 at paras 2 and 3, Mr Morris said:

2.    At the same time, it must be understood that, having accepted the responsibility of representing Mr Bethell, 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 Mr Bethell, will not necessarily traverse every argument or contention which Mr Bethell, 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 Mr Bethell'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.

42.    At the hearing before Rangiah J on 16 June 2021, Mr Morris said:

… your Honour will 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 a 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, 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.

Plainly Mr Morris was indicating that, consistently with his obligations to the court not to advance matters which have no proper foundation, he was not advancing the principal argument Mr Bethell now seeks to advance.

43.    This does not support Mr Bethell's current position. Whether Mr Morris was correct to discount the argument or not (and for reasons expressed below, I respectfully consider that he was correct), Mr Bethell must be held to the choice that his counsel made. It is a cardinal principle of adversarial litigation that, subject to carefully controlled qualifications, parties are bound by the conduct of their counsel: Nudd v The Queen [2006] HCA 9; (2006) 225 ALR 161 at [9] (Gleeson CJ). If the argument was reasonably capable of being advanced before Rangiah J, then it should have been, and it was not.

47    Justice Jackson noted that in that proceeding the Minister relied on an affidavit of Ms Natalie Jackson to the effect that, having reviewed Mr Bethell's records, having seen that his most recent bridging visa was cancelled and having regard to the fact that he holds no other valid visa, she has 'formed reasonable suspicion [sic] that the applicant is an unlawful non-citizen' (para 9). While his Honour put no weight on Ms Jackson's conclusionary statement of opinion that her suspicion is reasonable, his Honour concluded that there is no basis for doubt that she did (at least) suspect that Mr Bethell was an unlawful non-citizen.

Proceedings before Justice Logan

48    Relevantly before Logan J, the Minister relied on an affidavit of Ms Natalie Jackson. His Honour observed:

12.    …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.

49    His Honour referred to s 189 of the Migration Act which requires an officer who knows or reasonably suspects that a person in the migration zone (other than an excised offshore place) is an unlawful non-citizen to detain that person.

50    Justice Logan observed:

17.    Ms Jackson’s subjective opinion alone as to her suspecting that Mr Bethell is an unlawful non-citizen is not in itself determinative… 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…

51    At [18] his Honour noted that Mr Bethell had apparently made application for the revocation of the cancellation of his bridging visa, but as at the date of hearing there had been no revocation. That being so, he was a non-citizen of Australia who had no visa which was in effect.

52    At [20] his Honour observed that there was no particular fact which emerged of any relevance which would in any way have altered the position as it stood before Jackson J when Jackson J dismissed an application for injunctive relief.

Submissions of the parties in the present case

53    In summary, Mr Bethell submitted as follows:

    A person seeking a writ of habeas corpus may go from court to court or judge to judge, and each court or judge must consider the application without reference to any previous decision in that matter: ex parte Rowlands (1895) 16 LR (NSW) 239 at 246, Eshugbayi Eleko v Officer Administering the Government of Nigeria [1928] AC 459 at 468, In re Hastings (No 2) [1959] 1 QB 358; R v Malone [1903] St R Qd 150; Williamson v Director of Penal Services [1959] VR 205

    It is not open to the Court to find that the present proceedings constituted an abuse of process, notwithstanding that Mr Bethell has brought other applications for habeas corpus writs. It was his right to do so.

    The decision of the Court of Appeal of Victoria in Censori v Adult Parole Board of Victoria [2015] VSCA 254 concerned a change in the laws of Victoria. It did not represent the law in Queensland.

    Mr Bethell was administered a colonoscopy (to which he consented for medical reasons) on or about 19 March 2021, and was taken to see a psychiatrist later the same day. The purpose of taking him to see a psychiatrist that day was to persuade him to sign away his adult rights, because he was clearly experiencing the after-effects of his surgical procedure and was, in effect, drugged at the time. This conduct on the part of the Department for Home Affairs constituted torture within the meaning of Article 1 of the United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (Convention).

    Following the psychiatric consultation Mr Bethell began experiencing panic attacks, and subsequently fell from a vehicle in April 2021. He believed that, as a result, he had broken both of his little fingers. He has been refused medical treatment in respect of these injuries. This was cruel and unusual punishment. He also believed that a motive for the Department of Home Affairs denying him medical treatment was its fear that he would not be permitted to be removed from Australia by aircraft, because of the risk of deep vein thrombosis.

    The original decision of the Minister to cancel his visa was flawed, because

(a)    it was based on the incorrect premise that Mr Bethell was the subject of a domestic violence order, when that was not the case;

(b)    the best interests of Mr Bethell’s child had not been considered;

(c)    the Minister held incorrect, outdated, and irrelevant information about him which infected any decision of the Minister, including the falsehood that Mr Bethell had a criminal history. In fact Mr Bethell had been acquitted of indictable offences, and two other matters involving him were currently the subject of appeal in the Queensland criminal courts.

    It was the responsibility of the Minister to demonstrate the lawful reasonableness of the decision to continue to keep him in detention.

    It was incumbent on the Minister to demonstrate that fairness had been applied to the original decision to cancel his visa.

    The Court must conclude that the original decision to cancel his visa was not fairly made by the Minister.

    Natural justice was a paramount consideration in respect of the applications before the Court.

    Despite evidence on the part of the respondent that Mr Bethell had not lodged an application for revocation of the Minister’s decision, this was not the case as was demonstrated by an email from the Department of Home Affairs dated 17 June 2021.

    Mr Bethell did not agree to be voluntarily repatriated to the United Kingdom, because if he had agreed whilst he was on bail, he could be re-arrested for attempting to leave the country whilst on bail. Further, on entry into the United Kingdom he could be extradited back to Australia because he was facing ongoing criminal charges in Australia.

    The Minister had acted unlawfully in his case in endeavouring to have him deported whilst he was awaiting hearings in respect of his habeas corpus applications.

    I had not given him time in the present proceedings to make proper submissions in relation to the Habeas Corpus Act, which remained the law in Queensland.

    He felt like he had not had a proper hearing and that his entire argument had been ignored.

    He felt disadvantaged as a litigant in person.

    In respect of costs, he felt bullied; further his present applications were akin to bail applications in respect of which no costs should be ordered

54    The Minister submitted, in summary:

    Mr Bethell was lawfully in detention, as demonstrated by the affidavit of Ms Jackson.

    The applications before the Court constituted an abuse of process.

    If the Minister was successful, the Minister sought costs.

Consideration

55    I am satisfied that Mr Bethell is not unlawfully detained, such as to support the issue of a writ of habeas corpus.

56    Further, and noting previous decisions of this Court, both at first instance and at appellate level, I am satisfied that abuse of process principles can be applied in respect of repeated applications for the issue of writs of habeas corpus within a short time frame. I do not accept the submission of Mr Bethell in this case that there is no limitation on his ability to bring such repeated applications.

57    I have made these findings for the following reasons.

58    First, I accept that principles referable to the illegality of unlawful detention in Australia are part of the law of this country. As Gummow J noted in Plaintiff M47 v Director-General of Security [2012] HCA 46 at [108],

… subject to any relevant statutory procedures, there is applicable in Australia the proposition, recently affirmed by the Supreme Court of the United States, that habeas corpus is available to every individual detained in this country without legal justification. Secondly, it has long been settled that in a matter in which the Court is seized of original jurisdiction, the powers of the Court include the power conferred by s 33(1)(f) of the Judiciary Act 1903 (Cth) to direct the issue of a writ of habeas corpus…

(footnotes omitted)

59    Mr Bethell invoked, inter alia, the Habeas Corpus Act 1679 (Imp). Provisions of this Act have been retained in State statutes. For example, Thomas J in Re Jenkin [1994] 1 Qd R 266 at 269 observed in respect of detention in the context of the criminal law of Queensland:

We were also referred to a number of decisions and dicta concerning the effect of s. 6 of the Habeas Corpus Act 1679. That section was no doubt the forerunner to s. 590 of the Criminal Code. It may be that that Act continues to apply in Queensland, because the effect of s. 5 of the Imperial Acts Application Act 1984, along with the first schedule thereto, provides that the Habeas Corpus Act shall “continue to have the same force and effect, if any, as it had in Queensland immediately prior to the commencement of this Act”. It is unnecessary to pursue this question further, because the criminal practice in force in Queensland by reason of later enactments, including the Criminal Code allows no further room for its effective independent operation (cf. Clarkson v. Director-General of Corrections [1986] V.R. 425).

60    I also note such cases as Jago v District Court (NSW) (1989) 168 CLR 23, where the High Court of Australia discussed the application of principles in the Habeas Corpus Act 1679 (Imp) and their application to modern criminal law in Australia.

61    However, second, I note that Rangiah J – less than four weeks ago – found in Bethell v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 661, as a factual matter, that Mr Bethell was not unlawfully detained. In doing so His Honour carefully examined Mr Bethell’s claims of unlawful detention and rejected them. No factual matters have been demonstrated which have changed in that short passage of time.

62    In Tomlinson v Ramsey Food Processing Pty Limited [2015] 256 CLR 507; [2015] HCA 28 French CJ, Bell, Gageler and Keane JJ said:

20.    An exercise of judicial power, it has been held, involves "as a general rule, a decision settling for the future, as between defined persons or classes of persons, a question as to the existence of a right or obligation, so that an exercise of the power creates a new charter by reference to which that question is in future to be decided as between those persons or classes of persons". The rendering of a final judgment in that way "quells" the controversy between those persons. The rights and obligations in controversy, as between those persons, cease to have an independent existence: they "merge" in that final judgment. That merger has long been treated in Australia as equating to "res judicata" in the strict sense.

(emphasis added, footnotes omitted)

63    I also note observations of the Full Court of the Federal Court in Zetta Jet Pte Ltd v The Ship "Dragon Pearl" (No 2) (2018) 265 FCR 290; [2018] FCAFC 132 at [16].

64    In my view the principle of res judicata applies in respect of the question whether Mr Bethell is presently unlawfully detained. That issue was decided by Rangiah J, against Mr Bethell.

65    Third, as Jackson J observed in Bethell v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 727:

40.    If this proceeding continues to its conclusion there is also a risk that there will be inconsistent decisions, which may erode public confidence in the administration of justice by generating conflicting decisions on the same issue: see Rogers v The Queen (1994) 181 CLR 251 at 256-257 (Mason CJ), 280 (Deane and Gaudron JJ). Mr Bethell submitted that they would not be inconsistent because he was seeking to pursue different grounds to those he pursued before Rangiah J. But ultimately, on the present hypothesis, this court will have made two decisions about the same issue - the lawfulness of Mr Bethell's detention - when no relevant circumstances could possibly have changed.

(emphasis added)

66    I respectfully adopt the observations of Jackson J. I, too, consider that for me to find that Mr Bethell is not lawfully detained, when it appears that nothing of substance (or even lacking in substance) has altered since the hearing before Rangiah J, would potentially erode public confidence in the administration of justice by generating conflicting decisions on the same issue.

67    Fourth, even if I am wrong in respect of the application of principles of res judicata and the erosion of public confidence in the administration of justice, I note that the Full Court in Minister for Immigration and Multicultural and Indigenous Affairs v Al Masri [2003] FCAFC 70; (2003) 126 FCR 54 at 97 [176] found that it is for an applicant to adduce evidence that puts in issue the legality of detention, and then the burden shifts to the respondent to show that detention is lawful, and may be discharged on the balance of probabilities. In this case as Ms Spottiswood for the Minister submitted:

    Sections 13 and 14 of the Migration Act cumulatively define an unlawful non-citizen as a non-citizen who does not hold a visa. Mr Bethell’s original visa was cancelled pursuant to s 116 (1)(e)(ii) of the Migration Act, and his bridging visa cancelled pursuant to s 133C of the Migration Act. There is no evidence before the Court that Mr Bethell sought revocation of the first decision of the Minister, although there is some evidence before the Court that in June 2021 he sought revocation of the cancellation of his bridging visa.

    Section 82 (1) of the Migration Act provides that a visa that is cancelled ceases to be in effect on cancellation.

    Section 189 of the Migration Act requires an officer who knows or reasonably suspects that a person in the migration zone (other than an excised offshore place) is an unlawful non‑citizen to detain the person. While not conclusive, I note, and accept, evidence of Ms Natalie Jackson in her affidavit affirmed 13 July 2021 referable to s 189 of the Migration Act, in particular:

4.    On 25 June 2021, I became the Status Resolution Officer (SRO) for the applicant, taking over this role from Wayne Ruttley.

The role of an SRO

5.    As an SRO, part of my role is to consider whether individuals in detention assigned to me are unlawful-non citizens for the purposes of section 189 of the Migration Act 1958 (the Act). If I know or hold a reasonable suspicion that a person is an unlawful non-citizen, I must detain that person or cause someone else to detain that person.

6.    As the applicant’s SRO, I am required to maintain reasonable suspicion or knowledge that the applicant is an unlawful lnon-citizen to continue his lawful detention under s 189 of the Act. If I was no longer to hold such a reasonable suspicion or knowledge, I am required to take steps to have the applicant released from immigration detention.

    Section 196 (1) of the Migration Act provides that an unlawful non-citizen detained under s 189 must be kept in immigration detention until he or she is removed from Australia (s 196 (1)(a)), or an alteration is made in respect of residence determination (s 196 (1)(aa)) or he or she is deported (s 196 (1)(b)) or he or she is granted a visa (s 196 (1)(c)). Mr Bethell’s position is clearly covered by s196 (1).

    Regardless of whether an unlawful non‑citizen has made a valid application for a bridging visa, s 198 (5) of the Migration Act provides that an officer must remove the non-citizen from Australia as soon as reasonably practicable if the non‑citizen is a detainee. On the evidence before me I am satisfied that Mr Bethell falls into this category.

68    Mr Bethell has advanced no arguments, and provides no material, to negate any of these propositions. It is clear that Mr Bethell is currently detained. However, such material as is before the Court supports a finding that Mr Bethell has not discharged the onus of proof that he is unlawfully detained.

69    Fifth, I also note the recent decision of the High Court in Commonwealth of Australia v AJL20 [2021] HCA 21, in particular where the plurality of Kiefel CJ and Gageler, Keane and Steward JJ said:

61.    In contrast, ss 189 and 196 of the Act require the segregation of unlawful non-citizens, both before they are admitted pursuant to a visa and in order to facilitate their removal if a visa is not granted. Given this statutory requirement, it matters not why an officer of the Executive might detain a person because, provided that person is in fact an unlawful non-citizen, the Parliament has required that he or she be detained. Because the evident intention of the Act is that an unlawful non-citizen may not, in any circumstances, be at liberty in the Australian community, no question of release on habeas can arise. As Hayne J, with whom McHugh and Heydon JJ relevantly agreed, said in [Al-Kateb v Godwin (2004) 219 CLR 562; [2004] HCA 37]:

"The questions which arise about mandatory detention do not arise as a choice between detention and freedom. The detention to be examined is not the detention of someone who, but for the fact of detention, would have been, and been entitled to be, free in the Australian community."

62.    It is also convenient to note here a statement of the Full Court of the Federal Court (Black CJ, Sundberg and Weinberg JJ) in Minister for Immigration and Multicultural and Indigenous Affairs v Al Masri, in the course of reasoning to a conclusion disapproved by this Court in Al-Kateb. After correctly stating that "[i]f the Minister were not fulfilling his duty under s 198(1) to remove as soon as reasonably practicable the detention would ... still be lawful and the appropriate remedy would be an order in the nature of mandamus to compel the Minister to take the steps required for the performance of his duty", the Full Court went on…

70    While not argued before me, I consider that a serious question arises from findings in AJL20 as to whether an application for habeas corpus by Mr Bethell, an unlawful non-citizen in lawful detention under the Migration Act, is competent at all. In any event however, as Jackson J observed, the effect of AJL20 is that s 189 of the Migration Act requires an unlawful non-citizen to be detained until one of the events specified in s 196 (1) occurs, and that provision overrides any common law doctrines referable to habeas corpus.

71    Sixth, notwithstanding Mr Bethell’s submissions that he has been “tortured and drugged” while in detention, such material as is before the Court does not persuade me that Mr Bethell has been tortured and drugged within the meaning of the Convention. Rather, such material as is before me indicates that Mr Bethell had undergone a colonoscopy (with his consent), and that for unknown reasons he attended a psychiatrist on or about the same day. I am not persuaded on the state of the material that there was anything sinister associated with his attendance on a psychiatrist. I also do not accept that he has been refused medical treatment in respect of his allegedly broken little fingers to ensure that he is able to be deported without risk of suffering deep vein thrombosis.

72    Seventh, Mr Bethell’s complains that the cancellation decision(s) of the Minister in respect of his visa (potentially – one or both of the decision to cancel his Temporary Worker Visa on 10 November 2016, and the decision to cancel his bridging visa on 23 February 2021) were flawed because they were based on incorrect assumptions on the part of the Minister relating to his alleged criminality. However, the application before the Court is not, for example, an application for judicial review of a cancellation decision of the Minister made pursuant to s 501BA (2) or s 137K of the Migration Act. The reasons of the Minister for cancelling Mr Bethell’s visas are not in issue in the present case, they are not presently subject to judicial review, and they are not relevant. I note that a similar observation was made by White J in Bethell v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 756.

73    Eighth, I note Mr Bethell’s concerns that he is a litigant in person, dealing with difficult legal issues. He also submitted that he had had inadequate time to prepare for the hearings before me, and felt “bullied”. However:

    I note that Mr Bethell appeared before White J, Jackson J and Logan J, unrepresented, and, while unsuccessful, appeared able to articulate arguments before the Court referable to habeas corpus.

    I note that Mr Bethell has advanced similar arguments before me that he advanced before other Judges of this Court, including in respect of the unlawfulness of his detention, the conduct of the Department, his right to make habeas corpus applications, and the application of the Habeas Corpus Act 1679 (Imp).

    As I explained to Mr Bethell, it is appropriate for an applicant for a writ of habeas corpus to be brought promptly before the Court for hearing. Noting that Mr Bethell is due to be deported next week, it was urgent for his habeas corpus applications to be heard and determined as a matter of priority.

    Mr Bethell filed two sets of written submissions in these proceedings, to which I have had regard.

    I gave leave to Mr Bethell to make further submissions this morning, notwithstanding that judgment had already been reserved.

74    I am satisfied that Mr Bethell has been accorded natural justice in these proceedings. I also reject the proposition that his arguments have been ignored. The fact that I do not accept his arguments does not mean that I have failed to have regard to them.

75    Ninth, while Mr Bethell has complained about the conduct of the Minister and the Department:

    His submissions concerning the alleged unlawfulness of his repatriation to the United Kingdom have already been considered, and determined unfavourably to him, by White J, Jackson J, and Logan J in refusing his urgent interlocutory injunctions restraining his deportation.

    His submissions concerning the alleged disregard by the Minister of his application for reconsideration of the cancellation of his bridging visa are not substantiated. I also in this respect note relevant comments of White J.

76    Finally, I respectfully adopt the observations of Jackson J in Bethell v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 727 concerning repeated applications for writs of habeas corpus within a short time frame, where no relevant circumstances have changed. In my view Vasiljkovic v The Honourable Brendan O'Connor (No 2) [2011] FCAFC 125 is authority, binding on me, for the proposition that re-agitation of the same matter previously raised – including a claim of unlawful detention and the seeking of the issue of a writ of habeas corpus – can constitute an abuse of process. I am not persuaded that I am bound by historical authority, including Eshugbayi Eleko v The Government of Nigeria (Officer Administering) [1928] AC 459, as submitted by Mr Bethell.

77    As I have already observed, in this case Mr Bethell’s claim of unlawful detention, and an application for the issue of a writ for the issue of habeas corpus, have already been considered and determined by Rangiah J. As Mr Bethell noted at the hearing before me, Mr Bethell had the benefit of pro bono Senior Counsel acting on his behalf before Rangiah J in respect of his habeas corpus application. It cannot be said that Mr Bethell has not already fully argued the issue before another Judge of this Court.

78    As matters stand, it is evident that Mr Bethell filed another two applications, seeking the same relief in respect of which he had been unsuccessful before Rangiah J, almost immediately following the decision of Rangiah J. I note that:

    Justice Rangiah delivered judgment on 17 June 2021 in Bethell v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 661;

    Mr Bethell filed his originating application in QUD 192 of 2021 on 18 June 2021; and

    Mr Bethell filed his originating application in QUD 211 of 2021 on 29 June 2021.

79    An application for habeas corpus is a serious matter. However I reject Mr Bethell’s submission that he is entitled to “go from court to court, judge to judge” in the present circumstances. I consider that his applications for writs of habeas corpus in both QUD 192 of 2021 and QUD 211 of 2021 constitute an abuse of process of the Court.

Conclusion

80    Mr Bethell has not substantiated his applications for the issue of writs of habeas corpus in these proceedings.

81    It follows that I similarly reject his claim for an urgent order against the Minister and compensation for “attempting to circumnavigate the Habeas Corpus Act, by removal of the applicant”.

82    The applications before the Court in QUD 192 of 2021 and QUD 211 of 2021 should be dismissed.

83    I have already observed that both QUD 192 of 2021 and QUD 211 of 2021 were part-heard prior to the hearing yesterday. In dismissing paragraphs 2 of the application before his Honour in QUD 192 of 2021, Jackson J ordered that costs be in the cause. Justice Logan made a similar costs order in respect of QUD 211 of 2021.

84    Mr Bethell has been unsuccessful in respect of both applications before me. As a general proposition costs follow the event: Oshlack v Richmond River Council (1999) 193 CLR 72.

85    Mr Bethell submitted that it was inappropriate for me to make a costs order, as his application was akin to a bail application. I respectfully adopt comments of White J at [53] that the position in respect of a habeas corpus application is different to a bail application. I also note the following helpful observations of Refshauge J in J by his Litigation Guardian Vardanega v Australian Capital Territory (No 2) [2011] ACTSC 36:

[5]    The defendant submitted that the result of O 2 is that the plaintiff has been wholly unsuccessful in the action and that, accordingly, the defendant should ordinarily have its costs.

[6]    Originally, no costs were awarded in habeas corpus proceedings. Baron Alderson said in In Re Cobbett (1845) 14 M & W 175 (at 176) “costs are never given in such cases”. See also Burns Philp & Co Ltd v Bhagat [1993] 1 VR 203 (at 214) per Brooking J.

[7]    That position has now changed and, at least by 1894, it was accepted that there was a power to order payment of costs in habeas corpus proceedings: R v Jones [1894] 2 QB 382 (at 385, 386). In Australia, it is now clear that a court has power in proceedings for a habeas corpus writ or order to make an order for costs: R v Green; Ex parte Cheung Cheuk To (1965) 113 CLR 506 (at 519); R v Oregan; Ex parte Oregan (1957) 97 CLR 323 (at 334).

86    Similarly in Arthur as litigation representative for CYG v Commonwealth of Australia [2021] FCA 259 and Tran v Commonwealth of Australia [2021] FCA 580 single Judges of the Federal Court awarded costs against an unsuccessful applicant for the issue of a writ of habeas corpus.

87    In my view an order to that effect is appropriate.

Associate:

Dated:    16 July 2021