Federal Court of Australia
BVZ21 v Commonwealth of Australia [2021] FCA 1598
ORDERS
Applicant | ||
AND: | Respondent | |
DATE OF ORDER: |
THE COURT ORDERS THAT:
1. The separate questions ordered on 10 September 2021 pursuant to r 30.01 of the Federal Court Rules 2011 (Cth) be answered as follows:
(a) Has the applicant’s detention by the respondent at any given time since 19 June 2016 been unlawful?
Answer: No.
(b) Is the applicant entitled to release from detention by way of an order in the nature of a writ of habeas corpus?
Answer: No.
2. The costs of and incidental to the separate questions hearing be reserved.
3. The applicant serve on the respondent any amended originating application and any amended statement of claim within 28 days, or such longer time as may be allowed, seeking the consent of the respondent for leave to file that process.
4. The proceeding be listed for a case management hearing on a date in 2022 to be fixed in consultation with the parties.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
BROMWICH J:
1 The applicant, a citizen of New Zealand, has been in immigration detention continuously since 2015. This proceeding against the Commonwealth of Australia was commenced by an originating application and statement of claim, both dated and filed on 23 June 2021. In that application the applicant claimed, amongst other things:
(a) that she was being unlawfully detained, seeking orders in the form of habeas corpus against the Commonwealth, the respondent; and
(b) damages for false imprisonment from 19 June 2016, being that date that she asserts that she tried to depart from Australia voluntarily and that her immigration detention ceased to be lawful when an agency of the Commonwealth refused to let her depart on a flight to Indonesia.
2 The applicant has been legally represented from time to time in both this proceeding and in prior proceedings by a number of different solicitors and counsel. However, it does not appear that the applicant has had any legal assistance in the preparation of the statement of claim. It details in narrative form allegations that the applicant makes about her detention and her attempts to travel to Indonesia, and why she asserts that this, and various other actions taken or not taken, were in breach of the Migration Act 1958 (Cth). The statement of claim also contains allegations about injuries she claims to have suffered during her time in immigration detention, including alleged failures to provide her with medical treatment, and details of her personal circumstances, including those concerning a child that she has had since she has been in Australia.
3 The applicant’s assertion that keeping her in immigration detention has become unlawful is either at the core of, or affects in a material way, all of her claims and allegations. For that reason, I considered it appropriate to have that question determined first and separately by way of separate questions. On 10 September 2021, the following separate questions were ordered to be heard on 6 October 2021, at a time when the applicant was legally represented, and her then counsel was able to provide input into the form of those questions:
Pursuant to r 30.01 of the Federal Court Rules 2011 (Cth), the following Separate Questions be heard separately from any other questions arising in this proceeding:
(a) Has the applicant’s detention by the respondent at any given time since 19 June 2016 been unlawful?
(b) Is the applicant entitled to release from detention by way of an order in the nature of a writ of habeas corpus?
4 The applicant has sought leave to file an amended originating application and also an amended statement of claim. As both maintained that her detention was unlawful, I decided not to grant that leave at this stage, because the final form of any pleadings would be likely to be affected by the answers to the above questions, as explained at the commencement of the hearing on the Separate Questions on 6 October 2021.
Detention under the Migration Act
5 The provisions of the Migration Act that are relevant to the present question of lawful or unlawful detention of the applicant are as follows:
(a) Section 4 sets out the objects of the Migration Act:
(1) The object of this Act is to regulate, in the national interest, the coming into, and presence in, Australia of non-citizens.
(2) To advance its object, this Act provides for visas permitting non-citizens to enter or remain in Australia and the Parliament intends that this Act be the only source of the right of non-citizens to so enter or remain.
(3) To advance its object, this Act provides for non-citizens and citizens to be required to provide personal identifiers for the purposes of this Act or the regulations.
(4) To advance its object, this Act provides for the removal or deportation from Australia of non-citizens whose presence in Australia is not permitted by this Act.
(5) To advance its object, this Act provides for the taking of unauthorised maritime arrivals from Australia to a regional processing country.
(b) Section 5 defines “detain” to mean:
(a) take into immigration detention; or
(b) keep, or cause to be kept, in immigration detention;
and includes taking such action and using such force as are reasonably necessary to do so.
(c) Sections 13 and 14 in combination provide that a non-citizen who is in the migration zone (which includes the States and Territories) and does not hold a visa that is in effect is an unlawful non-citizen.
(d) Section 189(1) provides:
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.
(e) Section 196(1) provides:
An unlawful non-citizen detained under section 189 must be kept in immigration detention until:
(a) he or she is removed from Australia under section 198 or 199; or
(aa) an officer begins to deal with the non-citizen under subsection 198AD(3); or
(b) he or she is deported under section 200; or
(c) he or she is granted a visa.
(f) Section 198, titled “Removal from Australia of unlawful non-citizens” relevantly provides:
Removal on request
(1) An officer must remove as soon as reasonably practicable an unlawful non-citizen who asks the Minister, in writing, to be so removed.
…
Removal of unlawful non-citizens in other circumstances
…
(6) An officer must remove as soon as reasonably practicable an unlawful non-citizen if:
(a) the non-citizen is a detainee; and
(b) the non-citizen made a valid application for a substantive visa that can be granted when the applicant is in the migration zone; and
(c) one of the following applies:
(i) the grant of the visa has been refused and the application has been finally determined;
(ii) the visa cannot be granted; and
(d) the non-citizen has not made another valid application for a substantive visa that can be granted when the applicant is in the migration zone.
6 In Commonwealth v AJL20 [2021] HCA 21; 95 ALJR 567, decided on the day that this proceeding was commenced, a majority in the High Court (Kiefel CJ, Gageler, Keane and Steward JJ) said (omitting footnotes):
(a) At [35], that an unlawful non-citizen who does not hold a valid visa is required to be detained, being a duty imposed on immigration officers:
The combined effect of ss 189(1) and 196(1) is that a non-citizen can be lawfully within the Australian community only if he or she has been granted a visa. Otherwise, an unlawful non-citizen must be detained until such time as he or she departs Australia by one of the means referred to in s 196(1), relevantly in this case removal under s 198. That removal is to be effectuated by the performance of the duty that s 198(6) places on officers of the Commonwealth to remove “as soon as reasonably practicable”. This view of the relationship between s 196 and s 198 has consistently been accepted and applied in the Federal Court.
(b) At [49], that s 196(1) does not prescribe a closed list of reasons or purposes for which detention under s 189(1) can lawfully continue:
As has been seen, it is well-settled that the detention authorised by s 189(1) must continue until the first occurrence of a terminating event specified in s 196(1). The text of s 196(1) is clear: a person detained under s 189 “must be kept in immigration detention until”, relevantly, “he or she is removed from Australia under section 198”. The word “until”, used in its ordinary sense of “up to the time” and in conjunction with the word “kept”, refers to an ongoing or continuous state of affairs that is to be maintained up to the time that the event (relevantly, the grant of a visa or removal) actually occurs. As much is confirmed by s 196(3), to which the primary judge did not refer, in its provision that an unlawful non-citizen may be “release[d]” from detention only in the ways set out in s 196(1). In so providing, s 196 gives effect to the binary division drawn by the Act between lawful non-citizens, who may be at liberty in the community, and unlawful non-citizens, who must not be. Thus, as was explained by Hayne J in Plaintiff M76:
The requirement of s 196(1) that an unlawful non-citizen detained under s 189 must be kept in immigration detention “until” the happening of one of [the four terminating events prescribed by s 196(1)] cannot be construed as using the word “until” in some purposive sense. One of the terminating events is the grant of a visa and it is not to be supposed that detention could be for the purpose of granting the person detained a visa. It thus follows that the word “until” must be read in s 196(1) as fixing the end of detention, not as fixing the purpose or purposes for which detention is or may be effected.
(c) At [51]-[52], that the duty of detention is not conditional upon the intention or purposes of the executive in relation to a detainee, with the remedy for any dilatory failure of duty in relation to detention being enforceable by mandamus (emphasis in original):
[51] The duty imposed upon officers of the Executive by ss 189(1) and 196(1) of the Act is to detain the unlawful non-citizen until the occurrence of one of the events referred to in s 196. The duty so imposed by the Act is neither conditional upon, nor co-extensive with, the intents or purposes of officers of the Executive towards the detainee.
[52] Where the Executive is dilatory in performing the hedging duties imposed upon it, as French J observed, the remedy of mandamus is available to compel the proper performance of those duties. …
The applicant’s history as disclosed in prior proceedings
7 On 2 October 2020, Mortimer J in CPJ16 v Minister for Home Affairs [2020] FCA 1408 concisely summarised the applicant’s lengthy detention and litigation history up to the point of the application then being decided as follows (emphasis in original):
[1] This is an application for review of a decision made personally by the Minister to set aside a decision of the Administrative Appeals Tribunal and refuse the applicant’s application for a protection visa. For the reasons that follow, the applicant’s arguments should be rejected.
BACKGROUND
[2] There is a lengthy background to the current application. The applicant is a citizen of New Zealand who entered Australia in 2009 on a false passport. In 2010, once it was discovered that she had used a false passport to enter the country, a delegate of the Minister cancelled her visa and she was taken into immigration detention. A few days later she absconded and lived in the community until 2015, when she was located and taken back into immigration detention.
[3] On 21 September 2015, she applied for a protection visa. The basis of her application was that an ex-partner, who had gang connections, had put out a contract to have her killed because he believed she had betrayed him to police. The applicant claimed she had moved to another part of New Zealand but was constantly afraid of being recognised, because of the country’s small population. She claimed she had not reported the alleged contract to the police because that would make it seem like she was in fact a police informant. She claimed that, in any event, the police would not be able to protect her.
[4] On 16 December 2015, a delegate of the Minister refused the applicant’s protection visa application. The delegate found that the applicant did not satisfy s 36(2) of the Migration Act 1958 (Cth), which relevantly requires that an applicant for a protection visa be a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations.
[5] The applicant applied for review of the delegate’s decision in the Tribunal. On 4 August 2016, the Tribunal affirmed the delegate’s decision, but on 14 June 2017 the Federal Circuit Court ordered by consent that the decision be set aside and remitted the applicant’s application to the Tribunal.
[6] On 18 December 2017, a differently constituted Tribunal set aside the delegate’s decision and remitted the application for reconsideration with the direction that the applicant satisfied s 36(2)(aa) of the Act on the basis that the applicant’s ex-partner had put out a contract to have her killed and that authorities in New Zealand would not be able to protect her.
[7] On 7 September 2018, a different delegate again refused the applicant’s visa application, this time under s 501(1) of the Act, which provides that the Minister “may refuse to grant a visa to a person if the person does not satisfy the Minister that the person passes the character test”. The delegate found that the applicant did not pass the character test because there was a risk that she would engage in criminal conduct in Australia if she were allowed to remain in the country (see s 501(6)(d)(i)). That finding was based primarily on the applicant’s “extensive criminal history” and “other serious conduct”, which is discussed further below.
[8] The applicant again applied for review of the delegate’s decision in the Tribunal. This was her third review application before the Tribunal. On 3 December 2018, the Tribunal affirmed the delegate’s decision, but on 25 February 2019 the Federal Court ordered by consent that the decision be set aside and remitted the applicant’s application to the Tribunal.
[9] On 18 September 2019, a differently constituted (fourth) Tribunal set aside the delegate’s decision and remitted the application for reconsideration with a direction that the applicant was not to be refused the visa under s 501(1) of the Act. The Tribunal considered that, as the applicant had been found to be a person in respect of whom Australia has protection obligations, “good government” required that the discretion conferred by s 501 of the Act be exercised in favour of the applicant because (at [20]):
(a) sending the applicant back to New Zealand would put Australia in breach of its international obligations;
(b) the alternative to sending the applicant back to New Zealand – indefinite or prolonged detention – “would be open only to the criminal courts, not a member of the executive branch of government”; and
(c) there were strong humanitarian reasons for exercising the discretion in the applicant’s favour.
[10] The Tribunal was not satisfied there was a risk that the applicant would engage in criminal conduct if she were allowed to remain in Australia, primarily because she had compelling reasons not to engage in such conduct and she had not committed any offences since 2010 (at [52]). The Tribunal declined an invitation by the Minister’s representative during the review to consider in the alternative whether the applicant failed the character test because she was not of good character within the meaning of s 501(6)(c) of the Act.
[11] The Minister and the applicant both sought review of the Tribunal’s decision in this Court, that being the third time the applicant was participating in a judicial review proceeding about her protection visa application. The Minister sought to have the Tribunal’s decision quashed, and the applicant sought declaratory relief and an order compelling the Minister to determine her visa application in accordance with the Tribunal’s second decision: see Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v CPJ16 [2019] FCA 2033. The impetus for the application for declaratory relief was that the Minister had by this point given notice to the applicant that he was considering using his personal powers under s 501A(2) of the Act to set aside the Tribunal’s decision and refuse the applicant’s visa application. The question was whether this notice of intention operated to prevent the Minister or his delegate granting the applicant a visa under s 65(1) of the Act. On 25 November 2019, the Court dismissed the Minister’s application and granted the relief sought by the applicant, ordering the Minister to determine the applicant’s application on or before 6 December 2019.
[12] On 6 December 2019, the last day for compliance with the Court’s orders, as foreshadowed in the Minister’s notification the subject of the Court’s declaratory relief in CPJ16 [2019] FCA 2033, the Minister purported to exercise his personal power under s 501A(2) of the Act to set aside the Tribunal’s decision, and refuse the applicant’s protection visa application.
[13] Two weeks later, the Minister then appealed from this Court’s orders in CPJ16 [2019] FCA 2033. Given that the Minister had already purported to exercise his powers under s 501A(2) of the Act, the appeal was dismissed as moot: Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v CPJ16 [2020] FCAFC 87.
[14] In exercising his personal power under s 501A(2) of the Act, the Minister found that the applicant did not pass the character test because she was not of good character within the meaning of s 501(6)(c) of the Act. In reaching this conclusion, the Minister referred to the applicant’s criminal history, her disregard for Australia’s immigration laws, her behaviour in detention, and information which suggested to the Minister the appellant had in the past “exposed her children to a risk to their health and wellbeing” (at [69]). The Minister found it was in the national interest to cancel the applicant’s visa on account of her criminal and other serious conduct, the risk that she would engage in such conduct in the future, and “the importance of preserving a positive and enduring bi-lateral relationship with New Zealand”, which in the Minister’s opinion would be compromised if Australia were to facilitate the applicant’s evasion of the New Zealand justice system by granting her a protection visa (at [119]). The Minister stated that, having found that the applicant did not pass the character test and that it was in the national interest to refuse her application for a protection visa, he considered whether to exercise his discretion to refuse her application and decided to do so taking into account the interests of her son, the expectations of the Australian community, Australia’s international non-refoulement obligations, and the strength, nature and duration of the applicant’s ties to Australia.
[15] On 9 December 2019, the applicant sought review of the Minister’s decision: see CPJ16 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 980. Excluding the Minister’s appeal to the Full Court, this was the fourth judicial review proceeding in relation to her protection visa application. The applicant did not challenge the Minister’s findings that she did not pass the character test. Instead, the applicant submitted that the Minister’s decision was affected by error: first, because in deciding whether to exercise his discretion to refuse the applicant’s application he had failed to engage properly with the consequences of his refusing her application; second, because in his consideration of the national interest criterion he had taken into account either or both of two irrelevant considerations; namely, the importance of preserving a positive relationship with New Zealand and the potential exploitation of Australia’s visa system by individuals seeking to evade the New Zealand justice system.
[16] The Court accepted the applicant’s submissions on both grounds. The Court found that the Minister had failed to “squarely address that the actual consequence of his decision would be that there was a real risk that the applicant would be killed or seriously harmed after being refouled” (at [47]). The Court also found that the Minister’s consideration of the national interest criterion was flawed because it was premised on a false characterisation of the applicant: as merely a person trying to avoid New Zealand’s criminal justice system, rather than a person at real risk of being killed or seriously harmed. Consequently, on 9 July 2020, the Court set aside the Minister’s decision and ordered the Minister to determine the applicant’s application for a protection visa according to law on or before 23 July 2020.
[17] This remitter meant that there would be an eighth decision on the merits of the applicant’s protection visa application, by either a delegate, the Tribunal or the Minister himself.
THE DECISION UNDER REVIEW
[18] On 23 July 2020, again the last day for compliance with the Court’s orders, the Minister once more exercised his personal power adversely to the applicant, setting aside the Tribunal’s decision of 18 September 2019, and refusing to grant the applicant a protection visa. On this occasion, however, the Minister sought to exercise the power conferred on him by s 501A(3), which, unlike s 501A(2), is stated not to be subject to the rules of natural justice. In these reasons I will refer to the decision under s 501A(2) as the Minister’s first decision and the decision under s 501A(3) as the Minister’s second decision. In both cases, the nature of the power is one which authorises the Minister to “override” the conclusion reached by the Tribunal under a full merits review process. It is an extraordinary power in a system so heavily premised on merits review as that contained within the Migration Act.
8 Mortimer J dismissed the applicant’s judicial review application in relation to the Minister’s 23 July 2020 decision to set aside the Administrative Appeals Tribunal’s decision and instead to refuse to grant the applicant a protection visa on character grounds. An appeal from her Honour’s decision was dismissed on 27 November 2020: CPJ16 v Minister for Home Affairs [2020] FCAFC 212. Special leave to appeal from the Full Court’s decision was refused on 12 August 2021: CPJ16 v Minister for Home Affairs [2021] HCASL 149. It is apparent, but subject to formal proof in this proceeding, that the applicant is not and never has been a citizen of Australia and does not have a visa.
9 Much of the above history is also set out in the first of three affidavits that the applicant relies upon, albeit that she does not accept the correctness of the 23 July 2020 decision of the Minister for Home Affairs to override, for a second time, the Tribunal’s 18 September 2019 decision. She therefore continues to characterise herself as an applicant for a protection visa. However, her unsuccessful challenges to that decision are now exhausted and she is no longer a protection visa applicant because that application has been refused.
Evidence on the Separate Questions
10 By the time of the hearing of the Separate Questions on 6 October 2021, the applicant was no longer legally represented, but she filed affidavit evidence and written submissions, and made oral submissions at the hearing, as did the Commonwealth. Because the Commonwealth accepted that it bore the onus of proving that the applicant’s detention was lawful once that was questioned by the bringing of this proceeding, the Commonwealth was required (without dissent) to file its evidence and submissions first, to adduce its evidence first, and to address the Court first.
11 The Commonwealth relied upon affidavits from three deponents, each of whom had been a Status Resolution Officer (SRO) assigned to manage the applicant’s case. The Commonwealth also relied upon a bundle of Departmental records, filed the evening before the Separate Questions hearing, being case review records for the applicant. The bundle was tendered and, after the withdrawal of an initial objection primarily due to the last-minute provision of these documents, it was admitted into evidence. That evidence establishes:
(a) that SROs are assigned responsibility for a number of immigration detainees;
(b) part of that role involves assessing whether it remains appropriate for each detainee to be detained, and that there is no reason under s 196 of the Migration Act for the detainee to be released from detention;
(c) an SRO is required to form a view about whether they know or reasonably suspect that a detainee is an unlawful non-citizen for the purposes of the Migration Act;
(d) if the SRO knows or reasonably suspects that the detainee is an unlawful non-citizen, then they will continue to require that person to be detained, but will otherwise take steps to facilitate the release of the detainee;
(e) an SRO ordinarily personally engages with each detainee for whom they have responsibility on a monthly basis, either in person or, especially during the pandemic, over the telephone;
(f) the three SROs who provided affidavit evidence were, at different times, the SRO assigned responsibility for the applicant covering the period from 12 October 2016 to the date of the making of the most recent SRO’s affidavit, which was filed on 15 September 2021;
(g) each of those three SROs depose that, during the time that they had responsibility for the applicant, they knew or reasonably suspected that she was not an Australian citizen, did not hold a valid visa, and therefore was an unlawful non-citizen;
(h) each of those SROs depose to recording, in case review records produced by them, their satisfaction that the applicant’s detention was appropriate and the reasons for that conclusion, and that they would not have completed those records in that way if they had not been so satisfied;
(i) the same conclusion is able to be reached from the information contained in the bundle of departmental records for the period from May to September 2016, for which it was not possible to obtain an affidavit from the SRO who was responsible for the applicant at that time – the evidence of each of the three SROs enables those records, which are relevantly identical in nature to the records produced by them, to be understood as recording the knowledge or belief that the applicant was not an Australian citizen, did not hold a valid visa and therefore was an unlawful non-citizen;
(j) there is no evidentiary or other reason to doubt that this situation had existed from the time that the applicant went into detention in 2015 and did not change after 15 September 2021, noting that the applicant does not dispute that she is not an Australian citizen and does not hold a valid visa: as noted above and below she continues to describe herself as an applicant for a protection visa.
12 The applicant relied upon three affidavits sworn by her on 29 June 2021, 8 July 2021 and 17 September 2021, and their annexures. The Commonwealth only objected to limited parts of that material upon the basis of relevance and, for some parts also upon the basis that certain factual assertions made by the applicant were either scandalous or made without any foundation. Nor did the Commonwealth concede that all the facts asserted in such material was correct. The evidence was therefore tendered and received upon the basis that material having that character would not be received or otherwise taken into account.
13 The applicant’s affidavits detail, inter alia, aspects of her detention and treatment in detention, injuries and illnesses she has suffered, including as to treatment and certain medical records, difficulties encountered with legal representatives, and correspondence with and/or decisions of the New Zealand Consul-General, the Department of the Commonwealth of the Minister from time to time responsible for administering the Migration Act, that Minister (including as to Ministerial intervention and as to overriding a decision of the Administrative Appeals Tribunal), the Administrative Appeals Tribunal, this Court (at first instance and on appeal) and the High Court.
14 A key fact that the applicant sought to establish, and did establish to my satisfaction, is that she booked an airline ticket to fly from Australia to Indonesia on 19 June 2016 and was not permitted to leave immigration detention to board that flight. As noted above, her evidence that she is still a protection visa applicant cannot be accepted. The remaining topics traversed in the applicant’s affidavits include her attempts to get to the airport to get on a flight to Indonesia, and a range of allegations of impropriety in relation to that and in relation to her treatment in detention, including incorrect information being recorded about her and improper and corrupt motives for that taking place. She does not, however, question the limited facts established by the evidence adduced by the Commonwealth as summarised above.
15 I have considered the balance of the material in the applicant’s evidence going beyond her being prevented from leaving Australia on 19 June 2016. It does not establish any facts contrary to the present salient facts proven by the evidence adduced by the Commonwealth referred to above. That is, at the time that she sought to leave Australia to go to Indonesia on 19 June 2016 and thereafter she was not an Australian citizen, did not hold a valid visa and therefore was and still is an unlawful non-citizen. To the contrary, the applicant’s evidence at least partially supports evidence on this topic adduced by the Commonwealth, because she deposes to having been issued a New Zealand passport for the purpose of travelling to Indonesia. Support is also to be found in the visa decision records produced by the applicant, which it is not necessary to detail, being the response to numerous visa applications made by her since 2010, none of which has ultimately been successful.
16 The conclusion I reach from the above evidence, consistently with the observation made above at [8], is that the applicant has been at all times whilst in immigration detention an unlawful non-citizen, and that it was known or believed by those responsible for her detention that this was so.
The first separate question: “Has the applicant’s detention by the respondent at any given time since 19 June 2016 been unlawful?”
17 The Commonwealth submits that during all of the applicant’s time in detention she has neither been an Australian citizen, nor held a valid visa, and that the SROs responsible for her detention have at all such times known or believed that to be so. If the Court accepts that is so, then, the Commonwealth submits, AJL20 compels the conclusion that the applicant’s detention has been required and authorised by s 189 of the Migration Act and was therefore lawful. The Commonwealth submits that AJL20 also compels the conclusion that the duty to remove the applicant from Australia under s 198(6), if triggered, and any failure to comply with that duty, are not relevant to the existence of the requirement and authorisation to detain. The Commonwealth therefore submits that the answer to the first question must be “no”. The Commonwealth submits that the remedy for any breach of the duty to remove the applicant from Australia lies in the applicant seeking a writ of mandamus, foreshadowing that if that were to happen, the case in opposition would be that there had been no such breach.
18 The applicant in her submissions does not take issue with her characterisation as an unlawful non-citizen, but maintains that the failure to remove her from Australia on 19 June 2016, by not allowing her to fly to Indonesia on that day on a flight for which she had bought a ticket, rendered her detention from that time unlawful. She relies in particular upon two prior cases in the High Court to make good that proposition: Plaintiff M96A/2016 v Commonwealth of Australia [2017] HCA 16; 261 CLR 582 and Plaintiff S4/2014 v Minister for Immigration and Border Protection [2014] HCA 34; 253 CLR 219. The problem with that argument is twofold. First, it is apparent that the High Court in AJL20 took into account both of those decisions in reaching the conclusions reproduced above, and that there is nothing to be found in either of them to qualify the conclusions of the majority. Secondly, a Full Court (of which I was a member) has since determined that to be so: Commonwealth of Australia v MZZHL [2021] FCAFC 191.
19 In MZZHL the following was said (emphasis in original):
[30] After analysing earlier High Court authorities, including Plaintiff M96A/2016 v Commonwealth of Australia [2017] HCA 16; 261 CLR 582; Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs [1992] HCA 64; 176 CLR 1; Plaintiff S4/2014 v Minister for Immigration and Border Protection [2014] HCA 34; 253 CLR 219 and Al-Kateb v Godwin [2004] HCA 37; 219 CLR 562, the majority [in AJL20] held that the operation of ss 189(1) and 196(1) is not conditional upon compliance with s 198(6), either as a matter of ordinary statutory construction or in order to preserve its constitutional validity. Their Honours said at [51] (emphasis in original):
The duty imposed upon officers of the Executive by ss 189(1) and 196(1) of the Act is to detain the unlawful non‑citizen until the occurrence of one of the events referred to in s 196. The duty so imposed by the Act is neither conditional upon, nor co‑extensive with, the intents or purposes of officers of the Executive towards the detainee.
(See also the penultimate sentence of [48] of the plurality’s reasons as set out above at [29].)
…
[33] The respondent submitted that AJL20 High Court did not foreclose the first path of reasoning applied by the primary judge in the present proceeding. He contended that that path of reasoning remains sound, despite AJL20 High Court, and continues to be supported by cases such as Plaintiff S4; Plaintiff M61/2010E v Commonwealth of Australia [2010] HCA 41; 243 CLR 319; Plaintiff M76/2013 v Minister for Immigration, Multicultural Affairs and Citizenship [2013] HCA 53; 251 CLR 322 and Plaintiff M79/2012 v Minister for Immigration and Citizenship [2013] HCA 24; 252 CLR 336. For the following reasons, that submission cannot be accepted.
[34] First, the respondent has misunderstood Plaintiff S4. It was not a case about detention. Rather it focused on a different question, namely whether s 195A of the Migration Act empowered the Minister to grant a visa which precluded the person from making a valid application for a protection visa in circumstances where the Minister had already commenced considering exercising the personal non-compellable power under s 46A(2) to permit the person to make a valid application for a protection visa. As the majority explained in AJL20 High Court at [70], Plaintiff S4 is properly understood as emphasising:
… why administrative steps that prolonged detention must be taken within the framework of the Act and subject to its implicit temporal limits. Their Honours were not expressing a conclusion that failure to comply with a duty to bring about one of the terminating events in s 196(1) had the consequence that, ipso facto, detention became unlawful.
[35] Secondly, as the Commonwealth contended, Plaintiff S4 does not support the primary judge’s reasoning to the effect that, because his Honour held that the Commonwealth was taking insufficient steps to secure or attempt to secure the removal of MZZHL and had “abandoned any attempt to undertake such steps”, this meant that the detention was unlawful. Plaintiff S4 supports the Commonwealth’s contention in the present proceeding that the circumstances here did not establish that there were no enforceable limits on the respondent’s detention. Where the Executive has failed to comply with its statutory duty of removal under s 198, it is open to someone in MZZHL’s circumstances to enforce that obligation through mandamus. As the majority said in AJL20 High Court at [68]:
… Plaintiff S4 does not authorise reasoning from a finding of want of proper diligence in the performance of the duty to remove to a conclusion that some unauthorised punitive purpose is being pursued by the Executive.
And, as noted above, the majority referred earlier at [52] to the remedy of mandamus being available to compel the proper performance of the “hedging duties”, including the duty of removal.
[36] The related cases to Plaintiff S4 upon which the respondent relies take the matter no further. First, while reliance was sought to be placed on Hayne J’s dissenting judgment in Plaintiff M79 as providing “context” for his Honour’s views in Plaintiff M76 and the Court’s view in Plaintiff S4, the reasons of the majority in AJL20 High Court proceed on the basis that Plaintiff M76 adds nothing to what was said by the majority in Plaintiff S4 (see at [27] and fn 24).
20 There is no room for any conclusion that AJL20 does not govern the present situation. Accordingly the detention of the applicant has been lawful by reason of her being an unlawful non-citizen and not having a visa. This conclusion is unaffected by any failure to remove her, including by not permitting her to board the flight to Indonesia on 19 June 2016 and thereafter. The answer to the first question must therefore be “No”.
The second separate question: “Is the applicant entitled to release from detention by way of an order in the nature of a writ of habeas corpus?”
21 As the Commonwealth correctly points out, the second question, although overlapping with the first, requires a narrower focus. That is because, as pointed out by Black CJ in the Full Court case of Ruddock v Vadarlis [2001] FCA 1329; 110 FCR 491 at [71] (in dissent, but commenting in uncontroversial terms on habeas corpus), the writ of habeas corpus is “a remedy directed to the relief of a person’s detention without lawful authority, at a particular place and time”, which is distinct from the tort of false imprisonment. The focus is therefore on the applicant’s current detention.
22 The Commonwealth accepts that it bears the onus of proving that the restraint of the applicant by her detention is legally justified, but submits that, as the majority in AJL20 observed at [61], because “the evident intention of the [Migration 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”. Other prior authority relied upon by the applicant cannot overcome this binding conclusion. The answer to the second question must therefore also be “No”.
Conclusion
23 The Separate Questions are answered as follows:
(1) Has the applicant’s detention by the respondent at any given time since 19 June 2016 been unlawful?
Answer: No.
(2) Is the applicant entitled to release from detention by way of an order in the nature of a writ of habeas corpus?
Answer: No.
24 The above answers mean that the applicant does not have any arguable case for false imprisonment because her detention has been found to be lawful. However, there may be other remedies that she wishes to pursue in light of those answers. The appropriate course for the proceeding is for the applicant to be given time to prepare and furnish the Commonwealth with any draft amended originating application and any draft amended statement of claim, seeking consent for the grant of leave to file the same. If such consent is forthcoming, then it is likely that such leave will be granted. If consent is not forthcoming, any resultant application for leave will need to be heard and determined.
I certify that the preceding twenty-four (24) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Bromwich. |
Associate:
