Federal Court of Australia

AKW22 v Commonwealth of Australia (No 2) [2023] FCA 955

ORDERS

THE COURT ORDERS THAT:

1.    The applicant's application for interlocutory relief accepted for filing on 13 August 2023 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

BANKS-SMITH J:

1    Yesterday (Sunday, 13 August 2013) an application for interlocutory orders for a writ of habeas corpus and injunctive relief was filed. The urgency arose from the planned deportation of the applicant at 10.00 am AEST today. I heard the application in the evening and determined that it was to be dismissed. Having regard to the urgency, I made orders at the end of the hearing and gave brief reasons for doing so, and indicated that I would publish reasons today.

2    The applicant is a citizen of India. His skilled independent BN subclass 136 visa was cancelled in 2011 under s 501(2) of the Migration Act 1958 (Cth), following convictions for sexual offending. A review of that decision was unsuccessful. A subsequent application for a protection visa was refused. A review of that decision was also unsuccessful on remittal.

3    The applicant has been detained as an unlawful noncitizen since his release from prison in about January 2013, pending the hearing of a number of applications that he has brought, including further review applications, appeals and unsuccessful applications to the High Court.

4    It is common ground that he does not have a visa permitting him to remain in Australia.

5    This application cannot sensibly be viewed without regard to other recent applications brought by the applicant.

6    In July 2022 an application for the issue of a writ of habeas corpus or orders in the nature of habeas corpus founded on alleged unlawful detention was refused: AKW22 v Commonwealth of Australia [2022] FCA 869 (AKW22 (No 1)).

7    On 14 April 2023 the primary judge with conduct of the proceeding ordered that the whole of the statement of claim be struck out and the applicant's claim be dismissed: AKW22 v Commonwealth of Australia (No 2) [2023] FCA 332 (AKW22 (No 2)).

8    The applicant commenced an appeal from the orders in AWK22 (No 2).

9    On 7 July 2023 the applicant brought 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). I heard that injunction application at 9.30 am on 10 July 2023 and at approximately 12.30 pm delivered judgment dismissing that application: AKW22 v Commonwealth of Australia [2023] FCA 780 (AKW22 (No 3)).

10    At approximately 2.00 pm on the same day, the applicant commenced another proceeding, seeking a writ of habeas corpus or orders in the nature of habeas corpus. The application was said to be brought on the basis that the applicant's detention had been unlawful since at least December 2021 because it was alleged there had been non-compliance with Part 8C of the Migration Act, which requires the tabling of reports on persons in detention for more than two years. In particular, it was claimed that there had been breaches of s 486P of the Migration Act.

11    A hearing was convened at 3.45 pm on the same day before another judge of this Court, 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. The application was dismissed. Reasons were later published: AKW22 v Commonwealth of Australia [2023] 786 (AKW22 (No 4)).

12    At the time that I heard and determined AKW22 (No 3), counsel for the applicant failed to disclose to me the intention to bring a further habeas corpus application that day. This failure to inform the Court was addressed in AKW22 (No 4) at [15].

13    The application for the writ of habeas corpus made 7 July 2023 in this proceeding (WAD 155 of 2023) remains on foot and the decision in AKW22 (No 4) is now the subject of an application for leave to appeal.

14    Despite the urgency with which the applications were dealt on 10 July 2023, the applicant was not deported on that day.

15    On 21 July 2023 Mr Papalia of the Australian Government Solicitor, on behalf of the Minister, wrote to the applicant's solicitor, Mr Gill, relevantly as follows:

1.    We refer to the above proceedings and to the reasons for judgement given in AKW22 v Commonwealth [2023] FCA 780 and AKW22 v Commonwealth [2023] FCA 786, where Banks-Smith and Jackson JJ, respectively, refused applications made in each proceeding for an injunction to restrain the applicant's removal from Australia.

2.    On 10 July 2023, we advised you that we had been instructed by the Department of Home Affairs that the applicant's removal on that date was aborted, due to the applicant's behaviour when boarding the Singapore Airlines flight.

3.    We write to inform you that the Department intends to make further arrangements for the applicant's removal from Australia, presently scheduled for 14 August 2023.

16    Also on 21 July 2023 Mr Papalia, in a separate letter to Mr Gill, addressed the content of the habeas corpus argument the subject of AKW22 (No 4), relevantly stating as follows:

1.    We refer to the above proceeding, being an application for habeas corpus or orders in the nature of it, filed on 10 July 2023.

2.    As previously indicated in our letter to you dated 13 October 2022 in the context of the appeal in WAD168/2022, the Commonwealth's position, based on Australian authority, is that:

2.1.    the existence of the duty to detain under ss 189(1) and 196 of the Migration Act 1958 (Cth) (Migration Act) is not conditioned upon compliance with other requirements of the Act, particularly those found in Part 8C; and

2.2.    the Minister for Immigration is not under a duty to consider whether to exercise the power in s 197AB of the Migration Act to make a residence determination.

3.    We note that the Minister is not bound by any recommendations the Commonwealth Ombudsman makes in respect of the arrangements made for a person's detention (s 486O(4)).

Compliance with Part 8C

4.    We have previously furnished you with copies of the Secretary's reports given to the Commonwealth Ombudsman in respect of the applicant's detention for the purposes of s 486N of the Migration Act.

5.    In reference to [13] and [14] of your affidavit dated 7 July 2023, we are instructed that the Minister caused the Commonwealth Ombudsman's statements prepared in accordance with s 486O(5) of the Migration Act in relation to the applicant to be laid before each House on or about the following dates (enclosed):

[Dates listed]

6.    We are instructed that there was no assessment given by the Commonwealth Ombudsman in respect of the applicant in the 2022 calendar year.

7.    In light of the above, we invite the applicant to discontinue this proceeding on the basis that there has been no breach of s 486P of the Migration Act, as alleged. If the applicant is not minded to discontinue, we ask that you confirm in writing that the applicant will place no further reliance on any alleged non-compliance with s 486P of the Migration Act.

17    I note that in this second letter Mr Papalia also explained and highlighted the relevance and importance of provisions of the Parliamentary Privileges Act 1987 (Cth).

18    Whether the argument as to non-compliance with s 486P gave rise to a serious question to be tried, when assessed in the context of the obligations on an officer of the Department under s 189 and s 196, was addressed in AKW22 (No 4) at [7]-[12], including by reference to Commonwealth of Australia v AJL20 [2021] HCA 21; (2021) 273 CLR 43 at [35]. His Honour observed that:

[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]

19    His Honour was not satisfied that a coherent case had been made out as to how any non-compliance with Part 8C could impinge on the obligations and apparently plain meaning of s 189 read with s 196 of the Migration Act. This conclusion was reached assuming, in the applicant's favour, that there had been non-compliance with Part 8C.

20    Mr Papalia's evidence provided by the second letter of 21 July 2023 is important in this regard and does not assist the applicant. It does not appear that any additional evidence as to the applicant's allegedly unlawful detention, the need for which was foreshadowed in AKW22 (No 1) and AKW22 (No 2), has been forthcoming from the applicant.

21    On 8 August 2023 Mr Gill wrote to Mr Papalia indicating that his client disagreed with his planned removal and that he wished to continue with this proceeding after his removal.

22    On 11 August 2023 Mr Gill requested an undertaking from the Minister that the applicant would not be removed from Australia pending the outcome of the habeas corpus proceedings and stating that his removal may be a contempt of court. Mr Gill had been told by the applicant that on 10 August 2023 he had been moved from the Perth Immigration Detention Centre to Villawood Immigration Detention Centre.

23    Later on 11 August 2023 Mr Papalia on behalf of the Minister informed Mr Gill that the Minister declined to give the undertaking and that the applicant had been transferred to Villawood in preparation for a flight to Chennai in India on 14 August 2023, departing at 10.00 am AEST.

24    Mr Gill, who filed an affidavit in support of the application of 13 August 2021, deposed to the fact he had not received instructions until 12 August 2023 to 'oppose removal prior to the hearing of his habeas corpus application'. This was said in explanation of the lateness in bringing the urgent application.

25    In support of this application, the applicant relied on a statement in McHugh v Minister for Immigration, Citizenship, Migration Services and Multicultural Affairs [2020] FCAFC 223; (2020) 283 FCR 602 at [54] to the general effect that detention by the executive without judicial warrant is prima facie unlawful. He submitted through counsel that the powers and duties to detain and remove are hedged by the provisions of Part 8C of the Migration Act, and, observing that those provisions were not considered by the High Court in AJL20, submitted that those provisions 'fall to be considered in the present case and raise issues that are not without difficulty'. Counsel also relied on a general statement of Mortimer J in Commonwealth of Australia v Okwume [2018] FCAFC 69; (2018) 263 FCR 604 at [276]-[277] to the effect that there is a wider public interest in the determination of how s 189 and s 196 of the Migration Act might interact, because the liberty of other individuals in immigration detention may depend on that interaction.

26    The applicant's contentions with respect to McHugh were addressed in AKW22 (No 1) and AKW22 (No 2) (and see AKW22 (No 3) at [18]-[24]). Importantly, in AKW22 (No 4), the primary judge pointed to the absence of any analysis as to why any non-compliance with Part 8C might qualify or otherwise modify s 189 and s 196: see generally at [11]-[14], where his Honour drew attention to a number of questions that required attention and explanation in order to support there being a serious question to be tried. Regrettably, despite the attention given to these matters in each of AKW22 (No 1), AKW22 (No 2) and AKW22 (No 4), the position was not clarified or further developed before me. It is not enough to simply submit that there are issues, and that such issues are difficult or have not previously been considered by the Full Court or High Court. Nor is it enough to refer to a potentially broader public interest without defining a particular issue that properly arises and must be addressed. In order to be satisfied that there was a case that justified the immediate grant of the relief sought by the applicant, it was necessary to at least provide content and analysis to the issues said to arise. I am not satisfied that the applicant has established a serious question to be tried in this regard.

27    A further argument was based on the alleged lack of proper notice of the intention that the applicant be deported on 14 August 2023. The applicant relied on Moana v Minister for Immigration and Border Protection [2019] FCA 659; (2019) 265 FCR 337.

28    There are a number of points to be made in this regard.

29    First, the deferral of the applicant's deportation arose apparently because of his own conduct when boarding the planned flight on 10 July 2023. The Court addressed his interlocutory applications brought at that time on an urgent basis and both were determined prior to the time of the flight. The applicant and Mr Gill must have known that as a result, attempts would be made to have the applicant board a different flight. His non-removal on that date could not fairly have been taken of an indication of any change of position. Mr Gill knew from at least 21 July 2023 that it was intended that the applicant would be the subject of further arrangements for his removal, scheduled for 14 August 2023.

30    Second, and it follows, the applicant and Mr Gill have had ample time to bring whatever for further application for injunctive relief they could responsibly bring between 21 July 2023 and now. In the applicant's favour, I put little weight on the fact that the application was brought at the last minute. However, I reject any submission that the applicant has had insufficient time to bring an application. He has in fact brought one, albeit that the outcome was not the one he desired. He was also on notice from at least 12 July 2023, particularly from the reasons in AKW22 (No 4), of the matters that the Court would likely seek to have addressed in the context of considering whether there was a serious question to be tried relating to Part 8C. In saying this, I acknowledge that the decision in AKW22 (No 4) is subject to an application for leave to appeal (the proposed grounds were not before me), but regardless, there was no analysis for the purpose of this application of the manner in which Part 8C was said to impact the statutory requirements of s 189 or s 196 (obligations to detain) or s 198 (obligation to remove) of the Migration Act, and where there has been no change in the evidential basis of the applicant's claims since the application for a writ was refused in AKW22 (No 2).

31    Third, to the extent the applicant otherwise relied on Moana, it must be remembered that the facts of that decision are distinguishable. Moana concerned the involuntary removal of an applicant from Australia in circumstances where he had engaged the jurisdiction of the Court and still had a matter coming on for hearing regarding his cancelled visa. There remained the potential for Mr Moana that his judicial review proceedings might see his visa reinstated, so that he would cease to be an unlawful non-citizen. That is not this case. In this case, 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: see AKW22 (No 4) at [18]. There is no visa decision to protect.

32    In addition to these points, and having regard to the balance of convenience, senior counsel for the Minister referred to the allegation that the respondent would be in contempt by removing the applicant in the face of extant proceedings. Senior counsel noted the absence of any examination by the applicant of s 189 and s 198 of the Migration Act. He noted the absence of any extant proceedings with respect to a visa decision. In circumstances where the applicant remains an unlawful non-citizen, he observed that removal would in fact bring to an end the applicant's current detention. There is force in each of these observations.

33    The parties did not suggest that there was any issue as to the principles I should apply as to the grant of interlocutory relief. Both counsel referred to the intertwined limbs of the need for a serious question to be tried and the balance of convenience. The principles are well known and were addressed in both AKW22 (No 3) at [13]-[14], and AKW22 (No 4) at [5]. I also note in the context of this application the reference in AKW22 (No 4) to CPK20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 825, and the statement by Mortimer J that:

[15]    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.

34    For the reasons set out above, I was not persuaded that the applicant has established a serious question to be tried. Nor am I satisfied that the balance of convenience favours the grant of relief. I accept that the remedy of habeas corpus recognises at its heart the importance of the liberty of the individual. I also accept that the refusal of injunctive relief means that the applicant faces imminent deportation. However this is a case where the broader picture of the legislative intention, a matter addressed directly by Mortimer J in CPK20, is to be given considerable weight when considering the balance of convenience. The applicant has had numerous opportunities to be heard in this Court as to his claims of unlawful detention. He is still able to pursue those claims in part (as to which, see AKW22 (No 3)). He has indicated through Mr Gill that he will pursue the proceeding in this matter (WAD 155 of 2023) even if he is removed from Australia. To my mind to grant an injunction in the circumstances of this application, where habeas corpus has been requested and addressed previously in AKW22 (No 1), AKW22 (No 2) and AKW22 (No 4), and where there is no new evidentiary ground for the allegations made, would undermine the public interest in the administration of the Migration Act, particularly where the applicant has already exhausted all merits review and judicial review applications. The risk of frustration of legislative intention is an important element of the evaluative process in considering the grant of relief. In my view the balance of convenience in this case favours the refusal of relief.

35    Accordingly, I determined that relief was to be refused.

Associate:

Dated:    14 August 2023