Bethell v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

Federal Court of Australia (Full Court)|2022-05-16|Before: Stewart JJ

Counsel for the Appellant: The Appellant appeared in person

Solicitor for the Respondent: Australian Government Solicitor

AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS Respondent

The appeal be dismissed with costs. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

A INTRODUCTION 1 This is an appeal from the decision of a single judge of this Court refusing the appellant's application for the issue of a writ of habeas corpus: Bethell v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 661 (J). 2 The appellant, Mr Bethell, raises three grounds of appeal. All three grounds are misconceived (as reflected in the fact that the arguments upon which they are based have been consistently rejected by a number of judges of this Court, as well as the Federal Circuit Court of Australia, as it then was). 3 In written submissions provided by Mr Bethell to the Court on the day before the appeal, additional complaints, including an allegation of unlawfulness on the part of the primary judge, were raised. Further, during the course of his oral submissions, Mr Bethell contended he was being subject to an unfair hearing. For the reasons detailed below, none of these contentions has substance.

B PROCEDURAL HISTORY 4 The background to this matter has been extensively set out in the reasons of the primary judge (J [4]-[8]), as well as in Bethell v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 727 (at [2]-[12] per Jackson J), and Bethell v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (No 3) [2021] FCA 811 (at [17]-[29] per Collier J). It is not necessary to repeat this detail. 5 It suffices to note that Mr Bethell is a citizen of the United Kingdom who, until recently, had been detained in immigration detention pursuant to s 189 of the Migration Act 1958 (Cth) (Act). Mr Bethell entered Australia lawfully on a Temporary Worker Visa issued under the Act. That visa was cancelled in November 2016, at which time Mr Bethell was in prison in Queensland. Upon the cancellation of Mr Bethell's visa, he became an unlawful non-citizen within s 14 of the Act. 6 Section 189(1) of the Act requires an officer to detain a person whom the officer knows or reasonably suspects to be an unlawful non-citizen. Section 196(1) of the Act relevantly provides that an unlawful non-citizen detained under s 189 must be kept in immigration detention until "he or she is removed from Australia under section 198 or 199" (s 196(1)(a)) or "he or she is granted a visa" (s 196(1)(c)). 7 Section 198(5) of the Act provides as follows: 198 Removal from Australia of unlawful non-citizens … (5) An officer must remove as soon as reasonably practicable an unlawful non-citizen if the non-citizen: (a) is a detainee; and (b) neither applied for a substantive visa in accordance with subsection 195(1) nor applied under section 137K for revocation of the cancellation of a substantive visa; regardless of whether the non-citizen has made a valid application for a bridging visa. 8 At no point did Mr Bethell make an application under either ss 195(1) or 137K of the Act. 9 In late 2019, Mr Bethell was removed from the custody of Queensland corrective services authorities and taken into immigration detention. Shortly thereafter, in January 2021, Mr Bethell was granted a bridging visa and released from immigration detention, but, a little over a month later, the Minister cancelled the bridging visa pursuant to s 133C(3) of the Act. On 26 February 2021, Mr Bethell was returned to immigration detention. His case before the primary judge and on appeal concerns the period of detention from 26 February 2021. 10 On 29 March 2021, Mr Bethell commenced proceeding QUD 95 of 2021 seeking the issue of the writ of habeas corpus. Mr Bethell's submissions below were conveniently summarised by the primary judge (at J [10]): The applicant's case is that s 198(5) of the Act requires the applicant's removal from Australia as soon as reasonably practicable, but that departmental officers have unreasonably delayed in taking steps to remove him. He submits that it has been reasonably practicable to remove him from Australia since some time after 26 February 2021. The applicant submits that as he was not removed as soon as reasonably practicable, his continuing detention is no longer for the purpose of removing him as soon as reasonably practicable. The applicant submits, in particular, that there was unreasonable delay for about two months after 26 February 2021, and that even though more urgent efforts have been made to remove him since then, those efforts cannot convert unlawful detention into lawful detention. The applicant relies substantially upon AJL20 v Commonwealth of Australia [2020] FCA 1305. 11 By way of a broad summary, Mr Bethell argued that, because his removal from immigration detention had not occurred as soon as reasonably practicable, his continued detention from 26 February 2021 was unlawful. For this purpose, Mr Bethell relied upon the decision of Bromberg J in AJL20 v Commonwealth of Australia [2020] FCA 1305; (2020) 279 FCR 549, which, at the time, was the subject of a reserved judgment on appeal to the High Court of Australia. 12 The primary judge outlined the relevant principles informing the issue to be determined, stating (J [20]-[25]): 20. The onus of proof in an application for habeas corpus was considered in Minister for Immigration and Multicultural and Indigenous Affairs v Al Masri (2003) 126 FCR 54. The Full Court held at [176]: …[I]t is for the applicant to adduce evidence that puts in issue the legality of detention, and then the burden shifts to the respondent to show that detention is lawful, and may be discharged on the balance of probabilities. 21. In McHugh v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2020) 385 ALR 405, Allsop CJ observed at [60]: …Another way of expressing the question is whether the party seeking relief has shown a case fit to be considered by the court: Ex parte Khawaja at AC 111 (also cited in Yoxon at [39]). The necessity not to define precisely or overly finely in the abstract what has to be proved by the applicant can be appreciated if one recognises that in respect of some detentions (such as in Al Masri which concerned the possible exhaustion of the Constitutional purpose of the power to detain or, as here, where the detention is based on a mental state of the detainer required to be reasonably founded) the incidents or aspects of the lawfulness of the detention are within the knowledge and power of proof of the detainer: cf Blatch v Archer (1774) 1 Cowp 63 at 65; 98 ER 969 at 970 to the effect that evidence is to be weighed according to the proof which it was in the power of one side to produce and the other to contradict. 22. The respondent does not dispute that the applicant has adduced sufficient evidence to put in issue the legality of his detention, and accepts that the burden has shifted to the respondent to show that detention is lawful. 23. In McHugh, Allsop CJ noted at [57] that the importance of the issue of personal liberty requires "clear and cogent" proof. 24. In an application for habeas corpus, the issue is whether the applicant's current detention is unlawful, not whether his or her detention has been unlawful in the past: McHugh at [288]; Murray v Director-General Health & Community Services Victoria (unreported, Supreme Court of Victoria, Eames J, 23 June 1995) at 32. 25. Bearing these matters in mind, the issue to be determined is whether the respondent has demonstrated that the purpose of detention remains the removal of the applicant from Australia as soon as reasonably practicable. In considering this issue, it is relevant to consider whether it became reasonably practicable to remove the applicant at some time between 26 February 2021 and the present time. 13 After considering the steps taken by departmental officers to facilitate the removal of Mr Bethell after he was taken into immigration detention, the primary judge found that the detention was "not unlawful" because officers of the Minister had taken reasonable and adequately prompt steps to remove Mr Bethell as soon as reasonably practicable as required by s 198 of the Act: J [48], [52]. 14 Further, even if, contrary to the primary judge's finding, it was reasonably practicable to have removed Mr Bethell from detention, and the purpose of detention had been departed from, that purpose had nevertheless been regained by the time the application was heard: J [52]. The primary judge dismissed the application with costs. 15 On 18 June 2021, the day after the dismissal, Mr Bethell commenced the current appeal. Although he was represented by senior counsel in the proceedings before the primary judge, Mr Bethell lodged the notice of appeal as a self-represented litigant. In the notice of appeal, Mr Bethell also sought an injunction to prevent his removal from Australia before the determination of the appeal, which application was heard on 21 June 2021 by White J. 16 In refusing the application to enjoin the Minister, White J did not consider that Mr Bethell had established any arguable error in the reasons of the primary judge: Bethell v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 756. 17 Although not directly relevant to the issues raised in the current appeal, it is worth noting the tsunami of related litigation commenced by Mr Bethell. On the same day that he filed his appeal, Mr Bethell also commenced a fresh proceeding in this Court (QUD 192 of 2021) seeking substantively similar relief, including a second application for the issue of the writ of habeas corpus, and "an urgent injunction against deportation until lawfulness of detention is ascertained." 18 On 22 June 2021, Mr Bethell filed an application in the Federal Circuit Court of Australia (as it then was) seeking: first, an extension of time to make an application for review of the Minister's personal decision of 23 February 2021 to cancel the bridging visa held by Mr Bethell under s 133C of the Act; and secondly, interlocutory orders preventing his removal from the Australian mainland pending further order and releasing him from immigration detention. On 22 June 2021, Judge Lucev dismissed Mr Bethell's interlocutory application, having not been satisfied that there was a serious question to be tried: Bethell v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 1429. 19 On 29 June 2021, Jackson J dismissed, with costs, Mr Bethell's interlocutory application in this Court seeking an injunction preventing his removal from Australia in proceeding QUD 192 of 2021, on the basis that the proceeding amounted to an abuse of process: Bethell v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 727. 20 Not daunted, on 30 June 2021, Mr Bethell commenced yet another proceeding in this Court, in which he sought the issue of a writ of habeas corpus and an "urgent injunction against deportation until lawfulness of detention is ascertained" (QUD 211 of 2021). 21 On 1 July 2021, Logan J made the following orders in proceeding QUD 211 of 2021 (see Bethell v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 771): 1. The application for interlocutory injunctive relief in respect of the proposed removal of Mr Bethell from Australia be dismissed. 2. No application in respect of interlocutory injunctive relief restraining that removal be accepted for filing without the leave of the Court or a Judge first obtained. 3. Proceeding QUD211/2021 be heard together with proceeding QUD192/2021, and case managed to that end. 4. Costs of and incidental to the application as heard today be costs in the cause 22 Finally, on 16 July 2021, Collier J dismissed Mr Bethell's applications for a writ of habeas corpus in both QUD 192 of 2021 and QUD 211 of 2021 as an abuse of process, with costs: Bethell v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (No 3) [2021] FCA 811.

C THE APPEAL 23 In the notice of appeal, Mr Bethell advances the following three grounds: 1. His Honour failed to access the lawfulness of the original decision (the Ministers decision to cancel the visa). His honour therefore missed the primary purpose of the application; and considered only if the applicant since his application to the court was being removed as soon as reasonably practical. 2. The delay in hearing the matter, prevented a fair hearing, for the purpose of Habeas. 3. The costs awarded in a Habeas application are manifestly unjust. 24 In support of these grounds, Mr Bethell has filed an affidavit dated 18 June 2021, which makes submissions about various matters, including the three grounds of appeal. Furthermore, shortly before the hearing commenced, the Court received correspondence from Mr Bethell, which included a number of attachments, including submissions. 25 Before dealing with each of the grounds of appeal, it is appropriate to address initially two recent developments. 26 The first is that the evidence reveals that, on 20 July 2021, following the interlocutory hearing before White J, Mr Bethell was removed from Australia to the United Kingdom by a charter flight and, as such, is no longer detained by an officer of the Commonwealth of Australia. This had the obvious consequence that there is no possible basis for an order in the nature of habeas corpus, given Mr Bethell is no longer detained by an officer of the Commonwealth of Australia. 27 Secondly, it will be recalled that Mr Bethell below placed reliance on the decision of Bromberg J in AJL20 v Commonwealth of Australia [2020] FCA 1305; (2020) 279 FCR 549. Mr Bethell's argument was that his detention was not lawful because "he was not removed as soon as reasonably practicable": J [10]. By majority, the High Court has since allowed the appeal from Bromberg J's orders and dismissed AJL20's application for habeas corpus: Commonwealth of Australia v AJL20 [2021] HCA 21; (2021) 95 ALJR 567. The effect of the majority's decision is that, even if Mr Bethell had been successful in the way he ran the proceedings below, the appropriate order would have been mandamus and not habeas corpus. 28 It follows that any utility of this appeal has disappeared, with an exception as to the argument as to costs. Despite this, it is appropriate to deal briefly with the miscellany of complaints advanced by Mr Bethell, commencing with each of the grounds of appeal.

C.1 Ground 1: Failure to consider the cancellation decision 29 The first ground of appeal is that the primary judge failed to consider the lawfulness of the decision of the Minister to cancel Mr Bethell's visa. In his affidavit (at [7]-[11]), Mr Bethell appears to make various submissions directed towards the cancellation of his visa, which ultimately led to his detention: 7. Respectfully; Justice Rangiah's Judgement is flawed as he did not consider the first element in justifying the lawfulness of the detention. That being; was the decision to detain lawful, and was it lawfully reviewed, prior to removal. 8. The fact that the decisions to detain is unlawful (cancellation of visa) is manifest. (a) The Minister believed an application for a DVO was a DVO. (b) The Minister Prevented a court ordered assessment of the best interests of the child (family report) (c) The Minister placed weight on a neutral primary consideration (Australia's International Obligations) (d) The Minister holds old and incorrect records and information of the applicant; and has used incorrect information (to include contraband found; and an incorrect criminal history) to make false assertions about the applicant. 9. Further; the Minister offered to provide any documents relevant to the decision. (a) Despite request for a complete copy of the document the minister purported to be a DVO, detailing itself as page 2 of 3; the Minister refused to comply with the request. (b) The Applicant also asked for emails between the Department and QPS as he belives [sic] the true reason for the decision was never disclosed. 30 For the following reasons, this ground is without merit. 31 First, contrary to Mr Bethell's submissions, it is apparent that the primary judge did not make findings on the lawfulness of the Minister's decision to cancel the visa because the submission was not pressed at the hearing. 32 Mr Bethell was represented below by senior counsel. In written submissions, senior counsel submitted (at [2]-[3]): 2. At the same time, it must be understood that, having accepted the responsibility of representing Mr Bethell, the undersigned also has a responsibility to the Court. That responsibility: (a) precludes advancing any argument or contention which the undersigned, exercising his independent judgment, regards as having no real prospect of success; and (b) requires that the evidence and material before the Court be limited to that which is relevant to arguments and contentions which the undersigned, exercising his independent judgment, regards as having some prospect of success. 3. It necessarily follows that this outline, and the oral submissions on behalf of Mr Bethell, will not necessarily traverse every argument or contention which Mr Bethell, if unrepresented, would wish to advance on his own behalf. Should the Court wish to hear submissions in respect of such arguments or contentions, the undersigned will do his best to assist the Court by presenting them with appropriate frankness and candour. Alternatively, the Court may choose to accept that the arguments and contentions advanced by the undersigned represent the only arguments and contentions which can properly be advanced on Mr Bethell's behalf, consistently with the obligations of the undersigned pursuant to subsection 37N(2) of the Federal Court of Australia Act 1976, as well as his ordinary professional and ethical duties. 33 At the hearing before the primary judge, senior counsel stated (T78.39-79.2): Unless I can help your Honour otherwise, those are my submissions. I'm sorry, there is one other thing. I beg your Honour's pardon. I should say, because your Honour's conscious, I know - and your Honour will have read the disclaimer at the beginning of my submissions that I'm in an awkward position choosing to make only those submissions that I regard as having foundation. My client wishes to make the point that he is - should not be regarded as an unlawful non-citizen because the decision to revoke his visa was itself unlawful in that the Minister - that the wrong Minister made it and, in any event, was made on the basis of erroneous information. I highlight that that is a submission that my client wishes to make, and I say nothing further about it. 34 As Meagher JA observed in the frequently-cited passage in Beale v Government Insurance Office of NSW (1997) 48 NSWLR 430 (at 443), reasons for a decision need not "make findings on every argument or destroy every submission, particularly where the arguments advanced are numerous and of varying significance". This is not a case in which the primary judge failed to address a properly made submission. Rather, senior counsel did not press the lawfulness of the Minister's cancellation decision because, rightly, he considered that the submission lacked any proper foundation. 35 A not entirely dissimilar submission was agitated before Jackson J on the injunction application in QUD 19 of 2021. Justice Jackson rejected Mr Bethell's submission, stating (at [43]-[46]): 43 This does not support Mr Bethell's current position. Whether Mr Morris was correct to discount the argument or not (and for reasons expressed below, I respectfully consider that he was correct), Mr Bethell must be held to the choice that his counsel made. It is a cardinal principle of adversarial litigation that, subject to carefully controlled qualifications, parties are bound by the conduct of their counsel: Nudd v The Queen [2006] HCA 9; (2006) 225 ALR 161 at [9] (Gleeson CJ). If the argument was reasonably capable of being advanced before Rangiah J, then it should have been, and it was not. 44 Mr Bethell sought to meet this point by saying that he put his hand up at the end of the hearing and caught Rangiah J's eye, so that his Honour must have known that he wanted to make further submissions of his own. But that is not to the point. It is fundamental to the proper and efficient conduct of the business of the courts that if a party is represented by counsel in a proceeding (whether pro bono or not), the court may proceed on the basis that all the arguments that the client wishes to put that can properly be put are put by counsel. There is not necessarily any unfairness in the court preferring the submissions of a party's counsel over any submissions that that party may wish to make contrary to counsel: see e.g. Mansour v Jamil [2002] NSWCA 48 at [54] (Sheller JA, Stein and Hodgson JJA agreeing). Unless Mr Bethell took the extraordinary step of terminating Mr Morris's retainer before submissions had closed (which he did not), he had no right to put further arguments of his own. 45 As a result, for Mr Bethell (through counsel) to decline to put an argument in a proceeding, and then try to raise it (self-represented) when seeking identical relief within a matter of days of the first proceeding ending, is a clear abuse of process. For that reason alone, there is no serious question to be tried here. 46 Mr Bethell sought to argue that Mr Morris's retainer, or at least his ability to put arguments, were somehow limited by the fact that he did not have sufficient time to prepare all the arguments he might otherwise have made. That is an assertion unsupported by evidence. Mr Morris filed written submissions dated 5 May 2021 and the hearing at which he appeared was not for another six weeks, on 16 June 2021. There is no reason to think he could not prepare sufficiently. As his submissions quoted above indicate, the true reason he did not put the other arguments is because he did not consider that they had sufficient merit. For the reasons about to follow, indeed they did not. 36 His Honour's reasoning is, with respect, correct. 37 Secondly, and in any event, the primary judge did not have power to entertain some sort of appeal as to the lawfulness of the Minister's decision under s 133C(3) of the Act to cancel Mr Bethell's visa. A decision to cancel a visa under s 133C(3) is a "privative clause decision" within the meaning of s 474(2) of the Act and, as such, it is a "migration decision" as defined in s 5. As White J noted in Bethell v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 756 (at [38]), none of the matters which Mr Bethell has identified seems to raise a ground of jurisdictional error (and the Minister's decision under s 133C of the Act is only amendable to review by this Court in the event that jurisdictional error is established). 38 Thirdly, as the argument was developed orally, Mr Bethell's contention is that the primary judge erred in not concluding he was not an unlawful non-citizen (because the decision cancelling his visa was not lawfully made and should be treated as a nullity). But this was not the role of the primary judge. As the Minister correctly submitted, in Ruddock v Taylor [2005] HCA 48; (2005) 222 CLR 612 (at 622-623 [28]), Gleeson CJ, Gummow, Hayne and Heydon JJ explained that it is sufficient under s 189 of the Act if the detaining officers hold a reasonable suspicion that the person is an unlawful non-citizen and: … s 189 may apply in cases where the person detained proves, on later examination, not to have been an unlawful non-citizen. So long always as the officer had the requisite state of mind, knowledge or reasonable suspicion that the person was an unlawful non-citizen, the detention of the person concerned is required by s 189. And if the Minister brought about a state of affairs where an officer knew or reasonably suspected that a person was an unlawful non-citizen by steps which were beyond the lawful exercise of power by the Minister, it does not automatically follow that the resulting detention is unlawful. Rather, separate consideration must be given to the application of s 189 - separate, that is, from consideration of the lawfulness of the Minister's exercise of power. If it were suggested that the Minister had exercised power where the Minister knew or ought to have known that what was done was beyond power an action may lie for the tort of misfeasance in public office. But that has never been the respondent's case in this matter. 39 As noted at [18] above, Mr Bethell had unsuccessfully sought an extension of time to make an application for review of the Minister's decision to cancel his visa. The application below was of a different character and directed to a different issue - the lawfulness of his then detention. There was no error in the primary judge not considering the underlying decision of the Minister and accordingly, the first ground must be rejected.

C.2 Ground 2: Delay in hearing 40 Mr Bethell's second ground contends that the Court's delay in hearing the matter prevented a fair hearing. Mr Bethell's affidavit provides the following (at [19]-[23]): 19. In this case it is largely uncontested that at the time of the application that the detention the [sic] was unlawful. (a) The applicant wrote his affidavit on the 19th of March 2021, and despite multiple. Requests was made to wait until the 29th of March for a JP. (b) The Department was therefore notified on the 19th of march, that I would be making an Application for Habeas Corpus on the 19th of March based upon AJL20.. [sic] (c) On the 22nd My Case Manager, started the process of removal. It appears that he or the department on that date decided to remove my lawful right to have assessed the validity of the decision; or to provide the copies of the relevant document that I had requested. (d) Thus it is not the detention in it's normal process that is lawful; nor does it attempt to be lawful. It is an application before this court that triggers the Department to attempt to make the detention lawful. 20. Given that under it's current premise, the only means to secure lawful detention is to make a habeas application to this court; then the only time a detention becomes lawful is once a detainee apply for habeas. 21. Bail habeas applications are heard, the Same day, or the next day. The ICCPR communications around habeas state though certain states have committed to shorter periods; applications for habeas should be heard within 48hours. 22. Under the current state of delay in this court, If QUD95/2021 was to stand, a detainee (or anyone who believes he is unlawfully detained) makes an application because he is unlawfully detained. 41 This ground is also devoid of merit. 42 The Court's supposed "delay" was two-and-a-half months. In that time, the parties were required to file written submissions, a significant amount of affidavit evidence, the court book and the list of authorities so that the matter could be set down for hearing. One day after the hearing, the primary judge delivered judgment. On no rational basis can it be said that this timeline of events amounted to a "delay" in hearing and determining the proceedings. This is leaving aside the fact that at no time did counsel for Mr Bethell raise any concern about unfairness caused by delay and Mr Bethell has not demonstrated any unfairness associated with the two-and-a-half month time period from when he made his application to the final hearing. 43 To the extent that Mr Bethell submits that the Court's delay in hearing the matter facilitated an attempt by the respondent to "make the detention lawful", the submission is baseless. That submission is contrary to the factual finding of the primary judge that reasonably practicable steps had been taken to remove Mr Bethell since 26 February 2021 (J [48]-[49]), which was over a month before he filed his originating application. 44 In any event, the respondent's duty under s 198 of the Act to remove Mr Bethell as soon as reasonably practicable continued unabated since Mr Bethell was first detained. The fact that the respondent took steps to have Mr Bethell removed even after he had filed his application seeking habeas corpus is of no moment. 45 This ground of appeal seemed to change focus somewhat in the written submissions and orally. Mr Bethell submits the Court "does not have the Authority to deliberately cause delay in a Habeas Corpus case". Mr Bethell draws attention to what he describes as "mandatory timelines" in the Habeas Corpus Act 1640 (Imp) (16 Charles 1 c. 10) (1640 Act) and also relies upon unspecified provisions of the Habeas Corpus Act 1679 (Imp) (31 Charles 2 ch 2) (1679 Act) and the Habeas Corpus Act 1816 (Imp) (56 George 3 ch 100) (1816 Act). Section 6 of the 1640 Act, various sections of the 1679 Act, and all of the 1816 Act continue to have the same force and effect (if any) as they had in Queensland immediately prior to the commencement of the Imperial Acts Application Act 1984 (Qld). 46 It is unnecessary to consider the recondite topic as to whether (and the extent to which) any mandatory requirements as to timing or procedure in those Habeas Corpus enactments have relevant operation via s 79 or 80 of the Judiciary Act 1903 (Cth) in the proceeding below which, of course, was in federal jurisdiction. The insuperable difficulty for Mr Bethell is that the primary judge correctly identified the relevant question and found that because reasonable and adequately prompt steps to remove Mr Bethell as soon as reasonably practicable as required by s 198 of the Act had been taken, the detention was lawful: J [48], [52]. No alleged procedural error or suggested delay undermines the correctness of that conclusion.

C.3 Ground 3: Costs 47 The third ground contends that the costs awarded by the primary judge were "manifestly unjust". In support of this proposition, Mr Bethell's affidavit provides (at [18], [22]): 18. In Awarding Costs; and in the delay of the matter his Honour may shows that he did not understand Habeas. (a) Habeas has never attracted costs; Habeas is a Fundamental Human Right protected by the ICCPR. (b) Bail applications are Habeas; and everyday hundreds of thousands are heard without attracting costs; this is because liberty is a fundamental right, and review of the executives powers to detain an essential cornerstone of society. … 22. Under the current state of delay in this court, If QUD95/2021 was to stand, a detainee (or anyone who believes he is unlawfully detained) makes an application because he is unlawfully detained. i. The court does not consider the lawfulness of the decision to detain. ii. The Minister makes progress in the removal process and at the finish line the Minister shows he is ready to remove. iii. The Detainee (who may not have made the application themselves), is then fined for the Ministers costs, associated with making his unlawful detention lawful in time to pass the finish line. 48 The proposition developed orally that the Court had no power to award costs in a case such as this must be rejected. As the Full Court (Besanko, Jagot and Lee JJ) explained in LFDB v SM (No 2) [2017] FCAFC 207 (at [7]), it is trite that the Court has a broad power to award costs under s 43 of the Federal Court of Australia Act 1976 (Cth) (FCA Act) and although it has often been remarked that the discretion as to costs is unfettered, now, "in exercising the discretion to award costs, s 37N(4) of the [FCA Act] requires the Court to take account of any failure by a party to comply with the overarching purpose of the civil procedure provisions, namely to facilitate the just resolution of disputes according to law as quickly, inexpensively and efficiently as possible: see s 37M(1)". There is no fetter on awarding costs in a case such as the present. 49 Further, to the extent it is relevant, and contrary to Mr Bethell's submissions, costs orders have been made in habeas corpus proceedings: see J by his Litigation Guardian Maxwell Bernard Vardanega v Australian Capital Territory (No 2) [2011] ACTSC 36 (at [6]-[7] per Refshauge J), cited in Bethell v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (No 3) [2021] FCA 811 (at [85] per Collier J); see also Arthur as litigation representative for CYG20 v Commonwealth of Australia [2021] FCA 259; Tran v Commonwealth of Australia [2021] FCA 580. 50 As to the exercise of discretion, given that Mr Bethell had been unsuccessful in respect of his applications before the primary judge, the primary judge made what is often described as the "usual order" that costs follow the event. Although, as explained above, there is "no absolute rule" as to costs, one of the "general propositions" regarding an award of costs is that "generally that discretion is exercised in favour of the successful party": Foots v Southern Cross Mine Management Pty Ltd [2007] HCA 56; (2007) 234 CLR 52 (at 62-63 [25] per Gleeson CJ, Gummow, Hayne and Crennan JJ). 51 At no point during the proceeding below was a submission advanced on behalf of Mr Bethell by his senior counsel as to why the usual order as to costs would not be an appropriate order. There is no error identified in the exercise of the discretion of the primary judge in awarding costs.

C.4 Further contentions 52 As noted above, there were some further arguments advanced in the written outline and orally. It is appropriate to address briefly the following additional arguments advanced by Mr Bethell: (1) that senior counsel who appeared below was "simply 'winging it'" in his appearance in the proceeding below, had no loyalty to Mr Bethell, but rather only to the Court, and apparently had no authority to abandon arguments and the fact that senior counsel was unprepared led to the primary judge not conducting a "fair habeas corpus hearing"; (2) the decision of the majority of the High Court in AJL20 was wrong and "international legal writers and journalists see the dissenting decision as superior, and the verdict is a clear indication of a loss of impartiality of the Court"; and (3) the Full Court had conducted an unfair appeal and lied to Mr Bethell. 53 As to the first argument, there is nothing in the record below to suggest that senior counsel acted contrary to his duty to the Court or his duties to his pro bono client. The transcript reveals that any submission available to be put on behalf of Mr Bethell was advanced. There is no basis that we have seen in the record below for the contention as to a lack of preparation. 54 As to the second argument, it suffices to note that we are obliged to follow the authority of the High Court. 55 As to the third argument, it is necessary to explain some background. 56 It will be recalled that Mr Bethell is now in the United Kingdom. Following some enquiry, on 16 March 2022, the Queensland Registry of the Court relevantly advised the parties that "their Honours would like to advise the applicant" that "it will not be possible for the Minister to be compelled to bring him to Australia for the hearing of his appeal". It was further noted that in order to accommodate Mr Bethell, the Full Court would sit outside usual Court hours and that he would "therefore have to appear at the appeal hearing by video link, or alternatively if needs be, by telephone, which can be hosted by the Court, so that all he needs is either: (a) computer with an internet connection, camera and microphone; or (b) a telephone number at which he can be rung from the courtroom at the hearing time". 57 In response, on 18 March 2022, Mr Bethell wrote to the Registrar in the following terms: 1) It is possible for the Minister to be compelled to produce me! As the Court has historically done, numerous times. I refer you to the authority Somerset v Stewart (1772) [98 ER 499][1] (also known as Somersett's case, v. XX Sommersett v Steuart and the Mansfield Judgment. Mansfield ordered Somerset be produced, and he was by Captain Knowles on the 9th of December, despite the writ for Habeas Corpus only being made on the 3rd of December before the Kings Bench, and Somerset already being on a ship (the Ann and Mary) bound for Jamaica. This is manifestly improper, given that a habeas case has sanctions and clear punishments for judges and officers who deliberately cause delay, or prevent production. In Queensland where Habeas Corpus still has full effect, in is likely unlawful for the judges not to have me produced, and could result in them being fined and prevented from holding positions of trust. This is exacerbated, by a court that deliberate and unlawfully held off the original Habeas Application for sufficient time to allow the executive to attempt to make a unlawful detention lawful. Please could you provide clarity why the court believes that it has lost this power? 58 On 30 March 2022, the Queensland Registry sent the following correspondence to the parties: The Court notes the appellant's 18 March 2022 response to the email sent by the QLD registry on 16 March 2022, and also notes that no response [to that] email appears to have been sent on behalf of the respondent Minister. In response, please be advised that: 1. The Court is not persuaded by the appellant's email to make the order sought by him. 2. As preferred by the appellant, and not overtly opposed by the Minister, the appeal hearing will be listed to take place at 4.00 pm Brisbane time on Monday, 9 May 2022 (being 7.00 am UK time on Monday, 9 May 2022). 3. The appellant will be permitted to appear at that appeal hearing by telephone if he is unable to obtain the necessary computer and internet facilities to do so online, as he advises to be the situation. However it is the appellant's responsibility to ensure that he has a telephone by which he can be contacted by the Court both prior to and at the time of the appeal hearing, and to provide that telephone number to the Court as soon as possible. 4. The appearance can be arranged by the Court calling the appellant from the courtroom shortly before the appeal hearing commencement time. 5. An associate to one of the judges sitting on the appeal will also be asked to make contact with the appellant via his telephone number well prior to the appeal hearing taking place. That will take place as soon as possible after the appellant provides his telephone number, with the necessary arrangements being made by email beforehand. 6. The parties are asked to respond to this email by no later than 5.00 pm next Monday, 4 April 2022, Sydney time, being 4.00 pm Brisbane time and 7.00 am UK time. 59 On 4 April 2022, Mr Bethell responded to this email, stating simply: "Received". 60 Mr Bethell appeared via telephone at the hearing and at a various times made complaints to the effect that he was dyslexic and had other difficulties in participating in the appeal. For example, at T35.26-35, he said: MR BETHELL: Well, let me tell you now: I'm having difficulties. I've got learning difficulties. This is unfair. There is no fairness in the world - no ..... you got that would say that this was a fair hearing. Nothing would say this was fair. I'm - - - BROMWICH J: Well - - - MR BETHELL: - - - severely dyslexic. I'm ..... I need pens. I need paper. I need colouring in. I need to know that you're following me. I need eye contact. There's not - there's nobody in the world that would say this was a fair hearing. 61 What seemed to flow from the background outlined above was the submission put by Mr Bethell at the hearing that the Court had somehow "lied" to him by conveying that it "was impossible for [him] to be produced" by the Minister to the Court, and not conveying to him that it was open for him to file an application to seek to be produced to the Court: T29.27-29. This contention is without merit. 62 It goes without saying that it is not the responsibility of the Court to secure the attendance of a litigant to argue their case in person. If Mr Bethell had made a formal application to require the Minister to produce him in Court, we would have refused it. Apart from anything else, this Court has, over the last two years, become accustomed to receiving submissions, particularly on appeals, remotely. Indeed, one member of the Full Court participated in the appeal remotely by the use of the Microsoft Teams technology. Although remote participation by a party may be suboptimal, this does mean the hearing is in some way unfair. This was the sort of appeal that could be heard appropriately by the use of remote technology, a fortiori when one of the parties was abroad. It was up to Mr Bethell to make arrangements to appear by video link if he considered that telephonic participation was unsatisfactory. 63 Mr Bethell was given every opportunity to develop his arguments. The difficulty is that he has become fixated with a number of arguments that he has repeatedly advanced in various forums with a uniform lack of success. The hearing of the appeal was not unfair.

D CONCLUSION 64 For those reasons, the appeal should be dismissed with costs. I certify that the preceding sixty-four (64) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justices Bromwich, Lee and Stewart.

Migration Act 1958(Cth)ss 5, 14, 133C(3), 137K, 189, 195(1), 198, 474(2)

Judiciary Act 1903(Cth)ss 79, 80

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