Federal Court of Australia

AKW22 v Commonwealth of Australia [2023] FCA 786

ORDERS

THE COURT ORDERS THAT:

1.    The oral application for an interlocutory injunction in aid of the application for a writ of habeas corpus is dismissed.

2.    The applicant must pay the respondent's costs of the application to be assessed if not agreed.

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

REASONS FOR JUDGMENT

JACKSON J:

1    On 10 July 2023, I dismissed an oral application for an interlocutory injunction to restrain the Commonwealth from removing the applicant from Australia. These are my reasons.

2    The applicant is a citizen of India. Since 2013, he has been in immigration detention. It is common ground that he does not have a visa permitting him to remain in Australia. On 27 June 2023, the Australian Border Force notified him that arrangements had been made for his removal to India, which was anticipated to occur on or after 4 July 2023. On 3 July 2023, the Australian Government Solicitor (AGS), acting for the Department of Home Affairs, informed the applicant and his lawyers that he was to be removed on a flight departing from Perth for Singapore (with a connecting flight to Delhi and then onward to Chennai) at 5.10 pm on 10 July 2023.

3    On 25 May 2023, the applicant commenced proceeding WAD 114 of 2023 against the Commonwealth. That was an application for leave to appeal from an earlier decision of this Court summarily dismissing a claim by the applicant for false imprisonment. Last Friday, 7 July 2023, the applicant made an application for an interlocutory injunction restraining his removal from Australia pending the outcome of the application for leave to appeal and any appeal to the Court (which was accepted for filing on Monday, 10 July 2023). Justice Banks-Smith heard that injunction application at 9.30 am on 10 July 2023 and at approximately 12.30 pm, her Honour delivered judgment dismissing that application: AKW22 v Commonwealth of Australia [2023] FCA 780 (AKW22 2023(3)).

4    At approximately 2.00 pm on 10 July 2023, the applicant commenced the present proceeding, seeking a writ of habeas corpus or orders in the nature of habeas corpus. A hearing was convened at 3.45 pm, about 90 minutes before the applicant's flight out of Australia was due to depart. At that hearing, counsel for the applicant applied orally for an interlocutory injunction restraining the applicant's removal for two or three days so that the application for habeas corpus could be determined. That was the injunction application I dismissed.

5    I adopt Banks-Smith J's concise summary of the well-established principles governing interlocutory injunctions in AKW22 2023(3) at [14] that, 'in order to grant an interlocutory injunction the Court must generally be satisfied that there is a serious question to be tried and that the balance of convenience favours the grant of the injunction, although those limbs are not be viewed in isolation'. In Twinside Pty Ltd v Venetian Nominees Pty Ltd [2008] WASC 110 at [9], Beech J commented on the interrelation between the two limbs as follows: 'How strong the probability needs to be depends upon the nature of the rights the plaintiff asserts and the practical consequences likely to flow from the orders the plaintiff seeks'. In CPK20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 825 at [14], Mortimer J adopted Hoffmann J's observation in Films Rover International Ltd v Cannon Film Sales Ltd [1986] 3 All ER 772 at 781 that it is a fundamental principle that the court should take whichever course appears to carry the lower risk of injustice. In CPK20 at [15] Mortimer J observed further that:

In public law, evaluating the 'risk of injustice' to the repository of a public power may involve a different kind of evaluation. The risk of injustice may, in such circumstances, relate to the frustration of legislative intention within a legislative scheme, or the interruption of the course otherwise contemplated by law. Nevertheless, consideration of which course has the lower risk of injustice may still provide useful guidance to the Court in assessing whether it is appropriate to grant interlocutory relief.

6    In this case, I was not persuaded that there was a serious question to be tried and I considered that the balance of convenience did not favour the applicant. Taking those two common considerations together, and in view of the practical consequences of the orders the applicant was seeking, I considered that dismissing his injunction application was the course that ran the lower risk of injustice.

7    As to whether there was a serious question to be tried, the application for habeas corpus was put on the basis that the applicant's detention had been unlawful since at least December 2021. That was submitted to be because of Part 8C of the Migration Act 1958 (Cth), which is titled 'Reports on persons in detention for more than 2 years'. The applicant has been such a person since 2015. Section 468N read together with s 468L and s 486M thus obliged the Secretary of the Department, every six months, to give the Commonwealth Ombudsman a report relating to the circumstances of the applicant's detention. Then, under s 486O the Ombudsman was required, as soon as practicable after receipt of the Secretary's report, to give the Minister an assessment of the appropriateness of the arrangements for the applicant's detention. That assessment was to include any recommendations the Ombudsman considered appropriate, which may include a recommendation for the continued detention of the applicant, a recommendation that another form of detention would be appropriate, a recommendation that the applicant be released into the community on a visa, and general recommendations relating to the Department's handling of its detainee caseload: s 486O(3). The Minister would not have been bound by any recommendations the Ombudsman made: s 486O(4). The Ombudsman's assessment was required to include a statement setting out or paraphrasing the content of the assessment for the purpose of tabling in Parliament: s 486O(5). Section 486P required the Minister to cause that statement to be tabled in each House of Parliament within 15 sitting days of that House after the Minister receives the assessment.

8    The applicant relied on an affidavit of his solicitor, Andrew Gill, affirmed on 7 July 2023 which contained evidence suggesting that no such statement for the applicant had been tabled since 1 December 2021. Mr Gill's evidence was that the six monthly report of the Secretary of the Department was due within 21 days of each of 31 January and 31 July in each year. The applicant thus submitted that since December 2021 the Minister had been in default of the obligation to table a report every six months, and that this meant that his detention had been unlawful since that time. There was evidence that the Secretary had provided the Ombudsman with reports relating to the applicant's detention between February 2015 and August 2022, but there was no evidence as to whether this occurred six-monthly as required, or whether the Ombudsman had been in default of his obligation to provide an assessment and statement for tabling in Parliament to the Minister. According to Mr Gill, no such statement for the applicant had been tabled since December 2021.

9    Two further statutory provisions relevant to the lawfulness of the applicant's detention need to be mentioned. The first is s 189(1) of the Migration Act which provides that if an officer of the Department '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'. It was common ground that the applicant was an unlawful non-citizen in the migration zone so that s 189(1) was engaged. Section 196(1) sets out certain events which, when they occur, fix an end date to the detention of the unlawful non-citizen under s 189(1). In Commonwealth of Australia v AJL20 [2021] HCA 21; (2021) 273 CLR 43 at [35] a majority of members of the High Court summarised the combined effect of those two provisions as being 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.

10    A writ of habeas corpus requires justification and does not issue as a matter of course. However, once the applicant has discharged the initial evidentiary burden of establishing there is reason to suppose that his or her detention is unlawful, by adducing evidence that puts in issue the legality of the detention, the burden shifts to the respondent to show that detention is lawful: see AKW22 v Commonwealth of Australia [2023] FCAFC 71 at [11]-[12]. In the very short time between the commencement of this proceeding and the urgently convened hearing, AGS had obtained no instructions on the correctness of Mr Gill's evidence that no statement concerning the applicant had been tabled in Parliament since December 2021. I assumed, beneficially to the applicant, that the evidence was correct and that no circumstance potentially outside the Minister's control, such as delay on the part of the Ombudsman, explained the absence of any such statement. In other words, I assumed that since December 2021, the Minister had been in breach of his obligation under s 486P to table the statement. For the purposes of the interlocutory injunction I assumed, then, that the applicant had discharged his initial evidentiary burden, and that the Commonwealth would present no evidence to contradict it.

11    That was not the end of the matter, though, because whether the lack of any tabled statements since December 2021 concerning the applicant's detention rendered his detention unlawful turned on the proper construction of the provisions of the Migration Act which have been summarised above. When counsel for the applicant was invited to articulate how, as a matter of construction of the Migration Act, non-compliance with Part 8C could impinge on the apparently plain meaning of s 189 and s 196, he submitted that it followed from a 'purposive interpretation' of Part 8C. The submission appeared to be that the purpose of Part 8C was to ensure that the long term immigration detention of persons is evaluated on a regular basis, and that the Migration Act as a whole should be read as seeking to promote that purpose by removing the lawful authority (and requirement) to detain which would otherwise arise under s 189 read with s 196 if Part 8C is not complied with. The mandatory nature of the duty to detain under s 189 was all the more reason why Part 8C should be 'applied strictly'.

12    With respect, that submission was at too high a level of generality to be useful. It did not engage with how the text of s 189, s 196 and Part 8C of the Migration Act, considered in all their statutory context, might be read so that Part 8C qualifies or otherwise modifies the apparently clear meaning of s 189 and s 196. It did not engage with whether there was any apparent conflict between the text of Part 2 Division 7 of the Migration Act, in which s 189 and s 196 are found, and the text of Part 8C and if so, how all the relevant provisions could be read harmoniously. It did not address whether Part 8C should be understood as setting out conditions regulating the performance of the obligation to effect ongoing detention imposed by s 189 and s 196, and why that performance is invalid if the condition is not complied with. It did not explain how the applicant's asserted construction was consistent with the judgment of the majority in AJL20, including their Honours' statement at [73] that to order an unlawful non-citizen to be released into the community because officers of the executive had failed to perform their statutory duty would subvert the scheme of the Migration Act.

13    Rather than engage with any High Court authority on the construction of this country's Migration Act, the applicant relied on a United Kingdom decision, R (SK (Zimbabwe)) v Secretary of State for the Home Department [2011] UKSC 23; [2011] 1 WLR 1299. His counsel described that as a case where there had been a failure to comply with certain procedural requirements attendant on the immigration detention of a person in that country, with the result that the Supreme Court held the detention to have been unlawful. Counsel sought to characterise the present case as stronger than SK (Zimbabwe) because, there, the requirements were only 'procedural', by which I infer he meant matters of policy, whereas here the requirement said to have been breached was statutory.

14    Nevertheless, when asked to take the Court to the passage or passages relied on, counsel was unable to do so. And on reviewing the case, it appeared to me to be quite different to the present matter. The foundation of the decision in SK (Zimbabwe) was that the power to detain there was an executive discretion and that a failure by the executive to adhere to its published policy without good reason can amount to an abuse of power, which renders the detention itself unlawful, in circumstances where the power must be exercised reasonably and in a manner which is not arbitrary: see in particular at [40]-[42], [49]. That was so where the avowed purpose of the periodic reviews of the person's detention, which in that case had not been carried out, was to determine whether there were still good grounds to continue to hold him in detention: see [84]. Counsel for the applicant here made no attempt to draw any parallels between that legal context and the very different statutory context here. SK (Zimbabwe) is of no assistance in the present case.

15    In different circumstances, practical allowance might have been made for these shortcomings in the applicant's argument because of the extreme urgency with which the application was brought. But in this case, the extreme urgency appeared to be the result of a choice that the applicant made. The choice was not to make the originating application for habeas corpus, or the associated injunction application, until after the application which resulted in AKW22 2023(3) was determined. The basic timing is set out above. The affidavit filed in support of the present application was sworn last Friday 7 July 2023. There was email correspondence annexed to an affidavit of Jonathon Papalia, on which the Commonwealth relied, in which Mr Gill wrote to Mr Papalia on the same Friday 7 July foreshadowing both the application that was determined in AKW22 2023(3), and the present application for habeas corpus. So there is no apparent reason why the latter application had to be made after the former was determined, some three hours before the flight was due to depart. When asked for a reason, counsel for the applicant did not give one. I therefore infer that it was a deliberate choice made by the applicant.

16    I make no comment on what might have informed that choice. What is relevant for present purposes is that if the application had been made earlier, then all concerned would have at least had the benefit of the weekend to consider and marshal their respective arguments, so that the Court may have had the benefit of a properly articulated argument that there was a serious case to be tried, assuming that such an argument was open to be put. The applicant should not have the benefit of the doubt about his argument when that doubt was the result of his own deliberate choice. Delay is, of course, a matter that can be taken into account in the exercise of the discretion whether to grant an injunction and the unexplained delay here, while short, was significant given the urgency. To grant an injunction on the basis of speculation that, given more time, a coherent case might emerge would not have been appropriate.

17    Turning to the balance of convenience, on a superficial examination of the facts it might have appeared that this favoured the applicant, since it can readily be inferred that once he is removed to India, he would have little practical ability to be restored to the position at the time of making the application, where he was in Australia. But in this case, at least, the balance of convenience should be approached as shorthand for the broader question posed by the authorities mentioned above as to where, in light of the prospects of success of the applicant's case, the greater risk of injustice lies, having regard to the practical consequences of the orders sought. Three considerations led me to answer that question adversely to the applicant here.

18    First, the frustration of legislative intention within a legislative scheme or the interruption of the course otherwise contemplated by law, to which Mortimer J referred in CPK20, has weight in the present case. There was evidence in Mr Papalia's affidavit of the large number of merits and judicial review and other court applications and appeals which the applicant has brought since 2013. It would seem that those applications have resulted in the following published decisions:

(1)    Applicant 4264 of 2011 v Minister for Immigration and Citizenship [2011] AATA 920;

(2)    Applicant in WAD 230/2014 v Minister for Immigration and Border Protection [2014] FCA 1351;

(3)    Applicant in WAD 230/2014 v Minister for Immigration and Border Protection (No 2) [2015] FCA 705;

(4)    WZATV v Minister for Immigration and Border Protection [2016] FCCA 2019;

(5)    Applicant in WAD 531/2016 v Minister for Immigration and Border Protection [2018] FCA 27;

(6)    Applicant in WAD531/2016 v Minister for Immigration and Border Protection [2018] FCAFC 213;

(7)    Applicant in WAD531/2016 v Minister for Immigration and Border Protection [2019] HCASL 100;

(8)    AKW22 v Commonwealth of Australia [2022] FCA 869;

(9)    AKW22 v Commonwealth of Australia (No 2) [2023] FCA 332; and

(10)    AKW22 v Commonwealth of Australia [2023] FCAFC 71.

To that may now be added AKW22 2023(3) and this decision. Mr Papalia deposed that the applicant has no extant proceedings relating to his visa status, with all merits review and judicial review applications having been determined adversely to him.

19    In light of that procedural history, the risk was real that granting an injunction to further postpone the applicant's removal from Australia on the basis of a habeas corpus application which ultimately proves to have no merit would unjustly impede the due administration of the Migration Act.

20    Second, while the applicant ultimately seeks habeas corpus - an order, in effect, that he be released immediately from unlawful detention - the injunction he sought could potentially have prolonged that detention. His flight itinerary to Chennai was in evidence; if it was complied with, he was due to arrive in Chennai, where he would be released from the custody of immigration officers, within 24 hours of the date of the hearing before me, at the latest. If the injunction he sought had been granted, he would have been in that allegedly unlawful detention for at least one to two days longer pending the determination of his application for a writ of habeas corpus. That is not to disregard the impingement on the applicant's liberty involved in removing him to another country against his will. But assessed in terms of the right protected by habeas corpus - the right not to be unlawfully detained - it is not clear that the encroachment on that right which would result if the injunction were granted would be lesser than the encroachment if it were not.

21    Third, and related to the second point, are the practical consequences for the applicant if the relief he sought were granted. His counsel conceded, properly, that if habeas corpus were to be granted, and the applicant were to be released from detention, there would be a power for the Department to detain him again immediately after his release: see AJL20 at [89], citing Plaintiff M76/2013 v Minister for Immigration, Multicultural Affairs and Citizenship [2013] HCA 53; (2013) 251 CLR 322 at [183]. It must follow from this concession that the prior alleged breaches of Part 8C would not operate to make that new detention unlawful; only a failure to comply with the Part subsequent to his re-detention could conceivably have that effect. On the timing that emerges from Mr Gill's affidavit, the Secretary of the Department would have until at least 21 August 2023 to provide the necessary report (21 days after 31 July 2023), and then there would be the further times contemplated in Part 8C for the Ombudsman (as soon as practicable) and the Minister (15 sitting days after receipt of the Ombudsman's statement) to perform their obligations under the Part. Only after the expiry of those times could the applicant's renewed detention become unlawful (on his case). There would thus be ample time for the Department and the Minister to avoid the unlawfulness which, on the applicant's case, infected his current (prior) detention. In short, it can be readily inferred that the applicant would be detained again within a short time, and it would be unlikely that that detention would become unlawful at any foreseeable time.

22    Again, none of that is to detract from the fundamental importance of the liberty of the individual which underlies the remedy of habeas corpus. If the detention were to be judged to be unlawful, that remedy would follow as a matter of course. But as a practical consideration bearing on the jurisdiction to grant an interlocutory injunction in the course of an application for that remedy based on doubtful grounds, the likely futility of the order sought speaks against making it.

23    For those reasons, the injunction was refused. It is appropriate to make one more comment. The fundamental importance of the liberty of the individual does not detract from the obligation on parties and their lawyers to conduct civil proceedings as quickly, inexpensively and efficiently as possible: Federal Court of Australia Act 1976 (Cth) s 37N, read with s 37M(1)(b). Sections 37M(2)(b) and (c) acknowledge that efficient use of the Court's judicial and administrative resources, and efficient disposal of its overall caseload, are among the objectives that inform those obligations. In the absence of any good explanation, it was inconsistent with those objectives for the applicant to pursue the present application separately from the application that resulted in AKW22 2023(3). The decision to do so has led to unnecessary double use of the judicial resources of the Court. That is all the more to be deprecated in light of the significant expenditure of administrative and judicial resources reflected in the procedural history summarised above. As French CJ said in Aon Risk Services Australia Limited v Australian National University [2009] HCA 27; (2009) 239 CLR 175 at [23], 'the courts are concerned not only with justice between the parties, which remains their priority, but also with the public interest in the proper and efficient use of public resources'. The fundamental requirement to do justice to the applicant in this case was not a warrant for unlimited expenditure of public resources or unnecessary waste of those resources.

Associate:

Dated:    12 July 2023