AKW22 v Commonwealth of Australia

Principles 7 The principles concerning a writ of habeas corpus or an order in the nature of habeas corpus are well settled.

Nature of the writ, jurisdiction and power 8 A writ of habeas corpus is a procedural writ, the object of which is to enforce a legal right: Greene v Secretary of State for Home Affairs [1942] AC 284 at 302 per Lord Wright. It is a writ of right and not of course in that proper grounds for the issue of the writ must be shown. Discretionary considerations are not relevant: McHugh v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2020) 283 FCR 602 at 623 [77] per Besanko J. 9 This Court has both jurisdiction and power to entertain the issue of a writ of habeas corpus ad subjiciendum or make an order in the nature of habeas corpus: McHugh 283 FCR at 608 [2], 611 [21] per Allsop CJ, 648 [187], 650-651 [199] per Mortimer J. See also the comprehensive discussion by Mortimer J at 648-659 [187]-[248].

The evidentiary burden 10 In The King v Lindbergh; Ex parte Jong Hing (1905) 3 CLR 93 at 95, Griffth CJ, Barton and O'Connor JJ directed the issue of a writ of habeas corpus on the ex parte application of two persons who had been denied entry into Australia and the next day ordered their release because no one appeared to show cause why they should be kept in custody. Isaacs J (although dissenting) explained the procedure in Wall v The King; Ex parte King Won (No 1) (1927) 39 CLR 245 at 256, saying that the writ "had to be moved for, and a proper case had to be shown" for it to be issued so as to require the detainer to demonstrate the lawfulness of the detention on the return of the order nisi. Lord Goddard CJ and Slade J held in In re Corke [1954] 1 WLR 899 at 899 that because the writ is not one of course, before a court will issue the writ or grant leave to apply for it, "an affidavit must be before the court showing some ground on which the court can see that the applicant may be unlawfully detained". 11 Thus, the writ requires justification and does not issue as a matter of course. The ground for the making of an order nisi requires an applicant to demonstrate reasonable justification or probable cause, after which, in turn, the detainer must justify the detention by proving that it is lawful. 12 In that way, an applicant carries "at least an initial evidentiary burden of establishing that there is reason to suppose that [his or her] detention has ceased to be lawful": Plaintiff M47/2018 v Minister for Home Affairs (2019) 265 CLR 285 at 300 [39] per Kiefel CJ, Keane, Nettle and Edelman JJ. In Minister for Immigration and Multicultural and Indigenous Affairs v Al Masri (2003) 126 FCR 54 at 97 [176], Black CJ, Sundberg and Weinberg JJ held that: "it 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". 13 Historically, an application for the prerogative common law writ of habeas corpus ad subjiciendum involved the person detained seeking an order nisi (ie. an order requiring him or her to be brought before the court at a later date at which time, unless (nisi) the detainer could justify the detention, the writ absolute would issue requiring his or her immediate release). This common law writ was different to the statutory writ of habeas corpus in respect of criminal matters involving a person who had not been granted bail, as provided under the Habeas Corpus Act 1679 (UK) (16 Cha II ch 2) or the Habeas Corpus Act 1816 (UK) (56 Geo III ch 100. 14 In Hobhouse's Case (1820) 3 B & Ald 420, the Court of King's Bench affirmed that a writ nisi of habeas corpus (which ordinarily could be sought ex parte) would not issue "without any cause shown". Abbott CJ, with whom Bayley J agreed (at 423), held that "the foundation upon which the writ [nisi] is prayed should be laid before the Court or Judge who awards it". Holroyd J (at 423-424) held that at common law the party applying for the writ must lay a reasonable ground before the court in order to induce them to grant the writ. Best J expressed a similar opinion to the other judges (at 424-425). 15 An applicant's evidentiary burden to establish a prima facie case is very fact sensitive (McHugh 283 FCR at 628 [95] per Besanko J), but its content and nature do not approach the level of detailed or comprehensive proof of unlawfulness (at 663 [273] per Mortimer J). An applicant for the writ must adduce evidence demonstrating "probable cause", "reasonable justification" or show a "case fit to be considered" by the court sufficient to require the detainer to justify the lawful character of the detention: McHugh 283 FCR at 619 [60] per Allsop CJ. 16 Thus, there must be some probative material put before the court to warrant it considering the application for the issue of the writ nisi. In addition, the applicant's contentions must not be vexatious or fanciful: McHugh 283 FCR at 663 [273] per Mortimer J. 17 In McHugh 283 FCR at 659-665 [254]-[283], Mortimer J compared the burdens of proof in false imprisonment and any other claim for release based on unlawful detention, whether described as habeas corpus or orders in the nature of habeas corpus. After referring to the approach taken by the Full Court in Al Masri (2003) 126 FCR at 97-98 [176], her Honour observed that the same approach to the evidentiary burden was taken by both T Forrest J in Yoxon v Secretary to the Department of Justice (2015) 50 VR 5 at 14-15 [38] and by Besanko J in Burgess v Commonwealth (2020) 276 FCR 548 at 566-567 [68], the latter being a false imprisonment case. Her Honour noted at 662 [270] that in Burgess Besanko J (at 566-567 [68]) endorsed the following propositions from Jagot J's judgment in Guo v Commonwealth (2017) 258 FCR 31 at 56 [83], also a false imprisonment case, which were taken from Ruddock v Taylor (2005) 222 CLR 612 and Commonwealth v Fernando (2012) 200 FCR 1: (1) for the taking of a person into immigration detention to be lawful, the Commonwealth must prove that the detaining officer or officers held a reasonable suspicion at that time that the person was an unlawful non-citizen; (2) for the keeping of a person in immigration detention to be lawful, the Commonwealth must prove that the detaining officer or officers during the person's detention held a reasonable suspicion that the person was an unlawful non-citizen; (3) the lawfulness of detention, at all times, depends on the detaining officer or officers holding a reasonable suspicion that the person is an unlawful non-citizen; (4) as such, lawful detention may become unlawful if a detaining officer does not or no longer holds a reasonable suspicion that the person is an unlawful non-citizen; (5) similarly, unlawful detention may become lawful if the detaining officer forms a reasonable suspicion that the person is an unlawful non-citizen; (6) whenever detention is or becomes unlawful, the person is falsely imprisoned and the Commonwealth may be liable for that tortious conduct; (7) the Commonwealth bears the onus of proving the lawfulness of detention and thus must prove the existence of the relevant reasonable suspicion in the mind of the detaining officer or officers; and (8) the Commonwealth's complaints about the impracticality and inconvenience of having to prove the existence and subsistence of the required state of mind on the part of the detaining officer or officers do not carry weight. For one thing, when it comes to the deprivation of individual liberty, the common law is a vigilant guardian, and complaints by the person depriving another of their liberty that they might be inconvenienced by having to prove the lawfulness of the detention garner little support. For another, proof sufficient to establish the lawfulness of immigration detention involves matters of fact and of inference from fact. The Commonwealth is free to assist itself in discharging the onus of proof by the implementation of whatever systems, processes and safeguards it sees fit and by the calling of such evidence in any particular case as it sees fit. 18 Mortimer J's conclusion in McHugh 283 FCR at 665 [282] that there was no distinction to be drawn between the burden of proof in false imprisonment and any other claim for release from unlawful detention related to a different consideration from her Honour's earlier observations at 663 [273]. That concerned the evidentiary burden on an applicant for a writ of habeas corpus, or an order in the nature of it, at the time of the hearing. 19 Accordingly, when seeking a writ of habeas corpus or an order in the nature of habeas corpus an applicant must demonstrate, in the sense described above (ie. by showing "probable cause" or "a case fit to be considered"), that at the time of the hearing for the issue of the writ, his or her detention is unlawful. That is because a writ absolute of habeas corpus or an order in the nature of habeas corpus will only be granted if the detention of a person at a particular place at the time of the hearing is without lawful authority: Ruddock v Vadarlis (2001) 110 FCR 491 at 510 [71] per Black CJ. 20 Once an applicant discharges the evidentiary burden, the onus shifts to the detainer to prove the lawfulness of the detention.

The primary judge's reasons 21 The primary judge noted that it was common ground that the source of any authority to detain the appellant was s 189(1) of the Act which 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. 22 The appellant filed an affidavit, that he affirmed on 27 April 2022, together with the originating application seeking a writ of habeas corpus, in which he deposed to no more than: (1) his unbroken detention between 30 January 2013 to the date he affirmed his affidavit; and (2) the locations at which he had been, and was currently, detained. 23 His Honour noted the respondent's primary submission that the appellant had to show that, at the time of hearing, his detention was unlawful and its alternative submission that, on the evidence, the lawful basis for his detention at the time of the hearing had been demonstrated. Insofar as detention at any earlier point in time was concerned, the respondent submitted that the appellant had to raise some basis to support a claim that the earlier detention was unlawful before there could be any onus upon the respondent to adduce evidence concerning the position at any earlier time. 24 The primary judge held that an applicant could not simply assert a claim that his or her detention was unlawful and, without more, thereby shift the onus to the respondent to provide proof of lawfulness. His Honour reiterated substantively the principles set out above that the appellant must have some basis to make the claim. 25 His Honour referred to the undisputed evidence that, at the time of the hearing, there was a relevant officer who held the required knowledge or suspicion for the purposes of s 189(1). His Honour continued by finding that the applicant: (a) advanced no evidence as to why there was an issue concerning the lawfulness of his present detention by reason of past circumstances; (b) did not point to an unanswered inquiry or circumstance that required response having regard to the circumstances of the exercise of the statutory power and its nature; and (c) did not identify any circumstances about his visa status that might call into question whether an officer could have formed the required suspicion at the time he was taken into detention or thereafter. 26 His Honour concluded, correctly with respect, that unless and until the appellant had discharged the evidentiary burden, the respondent was not required to prove the lawfulness of the appellant's detention. His Honour found that the duration of the appellant's detention, of itself, was not sufficient to discharge the appellant's initial evidentiary burden and that the claim must fail. 27 The appellant submitted before the primary judge that his ongoing lawful detention depended upon his detention being lawful at the outset. To support that submission, the appellant relied upon s 196(1) of the Act which, it was submitted, "'links' ongoing detention back to 'the original detention under section 189(1)'". His Honour found that, since the lawfulness of the current detention depended solely upon current circumstances, only those circumstances needed to be examined. However, his Honour noted that if the lawfulness of the current detention depended wholly or partly on past circumstances, then those circumstances would have needed to be evaluated. The primary judge expressed no concluded view on the question of whether the appellant's current detention depended upon the validity of past detention, since that matter had not been fully argued. 28 The primary judge found that, in the circumstances, the appellant's detention had to be justified by s 189(1) and the period of that detention was determined by s 196 as explained by Kiefel CJ, Gageler, Keane and Steward JJ in Commonwealth of Australia v AJL20 (2021) 273 CLR 43 at 60-61 [16]-[17]. 29 His Honour concluded that the detention of a person under s 189(1) depended upon the relevant officer having, at any particular time, the required knowledge or reasonable suspicion that the detainee is an unlawful non-citizen. 30 Accordingly, the primary judge held the appellant was not entitled to a writ of habeas corpus or an order in the nature of habeas corpus and dismissed the application.

The notice of appeal 31 The sole ground of appeal is that the primary judge erred in holding the appellant had not met an evidentiary requirement that was a condition precedent to the respondent being called upon to justify the appellant's detention. There are eight sub-paragraphs of particulars for that ground. Without setting out the particulars verbatim, by way of summary, the particulars contend that: (a) any evidentiary onus on the appellant was discharged by him providing evidence of the circumstances and fact of his detention; (b) if unlawfully apprehended and further detained, that detention remains unlawful until such time as the detainee is released and, where appropriate, re-detained lawfully; and (c) the respondent had the onus to adduce evidence that the appellant's detention on 30 January 2013 and subsequently was lawful.

The evidentiary burden issue - the appellant's submissions 32 The appellant's submissions proceeded on two bases, namely that the primary judge erred by failing to consider: (a) the question of the lawfulness of the appellant's detention when initially he was detained in 2013; and (b) the length of his detention for about nine years required the detainer to justify its lawfulness. 33 The appellant had submitted before the primary judge that the onus of proof was on the respondent to establish that his detention was lawful. On appeal, the appellant accepted that he had made no claim before the primary judge that his detention was unlawful as at the time of the hearing, however, he submitted, on appeal, that he was not required to do so. That is because, so the appellant submitted, the onus of proof was on the respondent and any grounds supporting the lawfulness of the appellant's detention were within the knowledge of the respondent.

Consideration 34 This matter involves executive detention pursuant to s 189(1) of the Act. The lawfulness of a person's detention under s 189(1) depends on whether an officer holds reasonable suspicion or knowledge that the detained person is an unlawful non-citizen. Thus, an applicant for a writ of habeas corpus seeking to challenge the lawfulness of his or her current detention under s 189(1) must show some basis on which a court could conclude that he or she is not an unlawful non-citizen or the detaining officer did not reasonably suspect that he or she is an unlawful non-citizen. That evidentiary burden relates to the circumstances of the exercise of the statutory power to detain and its nature. Once an applicant's evidence puts one or more of those questions in issue, the onus shifts to the respondent to establish that the current detention is lawful. 35 What constitute reasonable grounds for suspecting a person to be an unlawful non-citizen for the purposes of s 189(1) of the Act must be judged against what the detainer knows or reasonably suspects at the relevant time (ie. at the time the detention was effected or is sought to be maintained): Thoms v Commonwealth (2022) 96 ALJR 635 at 641 [21] per Kiefel CJ, Keane and Gleeson JJ. 36 It may be observed immediately that before the primary judge the appellant failed to discharge his evidentiary onus. The primary judge found as much in his reasons at [11], to which we have referred to above, and against which there is no challenge on appeal. 37 The appellant submitted further that there is no distinction between the requirements of an application for habeas corpus and a claim for false imprisonment. The appellant referred to the observations of Mortimer J in McHugh 283 FCR at 665 [282] where her Honour said: Thus, on the present state of authority there is no distinction to be drawn between the burden of proof in false imprisonment and any other claim for release based on unlawful detention, whether described as habeas corpus, or as orders in the nature of habeas corpus, or as mandatory injunctions. In terms of the burden of proof no distinction is maintained and in each situation the burden is seen as lying on the detainer. While not all judicial minds may have approached the matter seeing them as equivalent (eg see Black CJ's reasons in Vadarlis at [70]), the present state of authority is clear … 38 We have dealt with that passage of her Honour's judgment above. It may be accepted that the tort of false imprisonment has two elements, first, the fact of imprisonment and, second, upon that element being satisfied by the applicant for relief, the onus shifts to the respondent to show lawful authority to justify that imprisonment: Lewis v Australian Capital Territory (2020) 271 CLR 192 at 206 [24] per Gageler J; Taylor 222 CLR at 650-651 [140] per Kirby J. As to the latter case, although Kirby J was in dissent, there is no issue concerning this point. 39 Three things should be observed about the appellant's submission. First, it fails to give due recognition to the difference in the nature of proceedings for the issue of a writ of habeas corpus (or an order in the nature of habeas corpus) and proceedings for damages for the tort of false imprisonment. In each case, the applicant bears an onus of proof that must be discharged before the detainer is called upon to prove the lawfulness of the detention (if it can do so). While the onus on the detainer is the same in each proceeding, the onus on the applicant is different. In the case of habeas corpus, the applicant must demonstrate that, at the time of applying for the writ, there is a "case fit to be considered". In the case of false imprisonment, the applicant must demonstrate only the fact of his or her imprisonment. 40 Secondly, and linked to the first, proving the fact of imprisonment is not the same as proving in habeas corpus proceedings that there is a "case fit to be considered" so as to oblige the detainer to demonstrate the lawfulness of the detention at the time of the application and or hearing. Thus, although in the cited passage Mortimer J identified that the burden of proof was the same for both false imprisonment and any other claim for release based on unlawful detention whether described as habeas corpus or otherwise, her Honour was not disagreeing with the long line of authority that in an application for a writ of habeas corpus (or an order in the nature of habeas corpus) it is the applicant who must first discharge the evidentiary burden that, at the time of the hearing, to use her Honour's words, there is a "case fit to be considered" by the court that the applicant's detention is unlawful. In any event, her Honour's observations about this issue were obiter dicta in respect of causes of action other than that for false imprisonment. 41 Thirdly, the submission fails to recognise the two causes of action have different timing requirements in relation to the evidentiary onus on each of the applicant and detainer. The two causes of action, although having the same ultimate burden of proof for the detainer, differ in the times at which that burden is called upon to be satisfied. As the authorities to which we have referred make clear, an applicant for a writ of habeas corpus or an order in the nature of habeas corpus must satisfy the evidentiary burden, at the time the application is heard, that there is a "case fit to be considered" before the detainer is called upon to discharge its substantive burden. 42 In contrast, in an action for false imprisonment, after the applicant has proved the fact of imprisonment and the duration of that imprisonment, the onus shifts to the detainer to prove the lawfulness of the imprisonment or detention throughout the period of the imprisonment or detention. That is not the same issue that arises on an application for a writ of habeas corpus or ascertaining if imprisonment or detention is lawful at a particular point in time, namely, the hearing. 43 The appellant's submission that his initial detention in 2013 was unlawful not only was unsupported by his affidavit filed in support of the application but was also irrelevant to the issue to be considered, namely, whether there was a sufficient basis to consider whether his detention was unlawful at the time of the hearing and, if so, whether the respondent had shown that it was in fact lawful. 44 That is not to say that the circumstances in which a person is detained can never be relevant to the question of whether any current detention is lawful. For example, a person arrested and taken into custody in reliance on a defective warrant of arrest or other instrument purporting to authorise his or her detention may result in unlawful imprisonment because the invalidity of the warrant or other instrument denies the lawfulness of any such detention. Likewise, if a person is taken into immigration detention without any officer forming the state of mind required by s 189(1), the detention is unlawful unless and until an officer forms such a state of mind: Fernando 200 FCR at 19 [84], [87], 20 [90]-[91] per Gray, Rares and Tracey JJ. 45 Here, the primary judge made an unchallenged finding that, at the time of the hearing, an officer knew or reasonably suspected that the appellant was an unlawful non-citizen as required by s 189(1) of the Act so that his claim for the issue of a writ of habeas corpus (or an order in the nature of such a writ) failed. Moreover, as the appellant acknowledged in his submissions in the appeal, he "made no claim that his detention was unlawful, and was not required to do so". 46 In addition, the appellant led no evidence to suggest that, at the time of the hearing, he did not have the status of an unlawful non-citizen or that an officer did not have reasonable grounds to suspect that he was. 47 As we have explained, the appellant had an evidentiary onus to show an arguable basis that, at the time of the hearing, his detention was unlawful. However, since the primary judge found as a fact that, at the hearing, his detention under s 189(1) was lawful, he was correct to dismiss the appellant's claim for the issue of the writ.

The length of detention issue 48 This issue concerns the relationship between ss 189(1), 196(1) and Pt 8C of the Act. 49 The appellant submitted that the mere fact of the duration of his detention since 2013 was a basis upon which his evidentiary burden might be discharged. He relied on ss 486L-486Q in Pt 8C of the Act that provide that: the Secretary of the Minister's Department must report to the Commonwealth Ombudsman on the circumstances of the person who has been in immigration detention for more than two years and at the end of each successive period of six months (ss 486L-486N); and the Ombudsman must give an assessment, that can include recommendations, to the Minister as soon as practicable after receiving a report from the Secretary (s 486O) but the Minister is not bound by any such recommendation (s 486O(4)). 50 The appellant contended that the regime in Pt 8C evinced the legislative intention that his detention beyond the end of its first two years (on 30 January 2015) required some justification beyond s 189(1). 51 The primary judge was right to reject that submission. His Honour held, correctly with respect, that the detention of a person under s 189(1) depends upon the existence in the mind of a relevant officer of knowledge or reasonable suspicion that the person is an unlawful non-citizen and that s 196 specifies no more than the circumstances which bring to an end the duration of detention under s 189(1). 52 The primary judge observed that it was conceivable there may be circumstances where the nature of the power relied upon to support executive detention made it unlikely that a period of detention for a number of years might be supported by the power such that the period of detention, of itself, was enough for the appellant to discharge the initial burden. His Honour noted, however, that there was no attempt to characterise the executive power in s 189(1) as falling into such a category and that the statutory regime which operates may have the effect of detention continuing for a considerable number of years whilst various legal avenues are pursued. Accordingly, his Honour considered the duration of detention, of itself, was not a basis upon which the appellant's initial evidentiary burden may be discharged. 53 As Kiefel CJ, Gageler, Keane and Steward JJ held in AJL20 273 CLR at 60 [16]-[17]: Read with the definition of "detain" in s 5(1) of the Act, s 189(1) has two distinct and sequential operations. First, it authorises and requires a person in the migration zone to be taken into immigration detention by an officer who knows or reasonably suspects that the person is an unlawful non-citizen. Secondly, it authorises and requires the person, having been taken into immigration detention, to be kept in immigration detention by or at the direction of an officer who knows or reasonably suspects that the person is an unlawful non-citizen. Section 196 governs the period for which a person taken into immigration detention is to be kept in immigration detention under s 189(1) by or at the direction of an officer who knows or reasonably suspects that the person is an unlawful non-citizen … 54 It follows that his Honour was correct to reject the submission that somehow Pt 8C or the relationship between ss 189(1) and 196 showed, or raised a sufficient case, that his immigration detention was unlawful. 55 Accordingly, the appeal must be dismissed.

The notice of contention 56 It is not necessary to consider the onus of proof and s 189 issues raised by the notice of contention. 57 However, the primary judge found that, at the time of the hearing, there was undisputed evidence a relevant officer held the required knowledge or suspicion for the purpose of authorising the appellant's detention under s 189(1). Thus, regardless of whether the appellant discharged his evidentiary burden so as to shift the onus to the respondent, the respondent provided evidence sufficient to discharge its ultimate onus of establishing that the appellant's detention pursuant to s 189(1) of the Act was lawful. 58 Accordingly, we would also dismiss the appeal on the basis that, in any event, the respondent had discharged its onus of proving the lawfulness of the appellant's detention at the time of the hearing.

Conclusion 59 The parties accepted that costs should follow the event. 60 Accordingly, we will order that the appeal be dismissed with costs. I certify that the preceding sixty (60) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justices Rares, O'Sullivan and Feutrill.