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

issues for determination 6 The issues that arise in this interlocutory application are: (1) whether the Migration Act permits the release of an unlawful non-citizen from migration detention on an interlocutory basis where the detention is the result of the non-citizen's visa having been cancelled under s 501(3A). (2) whether, in relation to the interlocutory relief sought: (a) there is a serious question to be tried (a sufficient likelihood the applicant will succeed on questions of law and fact and mixed law and fact); and (b) the balance of convenience weighs sufficiently in favour of the applicant. 7 I will deal first with the issue relating to the Migration Act.

Legislation 8 Section 13 of the Migration Act provides that "a non-citizen in the migration zone who holds a visa that is in effect is a lawful non-citizen". 9 Section 14 provides that a "non-citizen in the migration zone who is not a lawful non-citizen is an unlawful non-citizen". 10 Section 189 of the Migration Act provides (so far as relevant): if an officer knows or reasonably suspects that a person in the migration zone… is an unlawful non-citizen, the officer must detain the person. 11 Section 196 provides, so far as it is relevant: (1) An unlawful non-citizen detained under section 189 must be kept in immigration detention until: (a) he or she is removed from Australia under section 198 or 199; or … (c) he or she is granted a visa. (2) To avoid doubt, subsection (1) does not prevent the release from immigration detention of a citizen or a lawful non-citizen. (3) To avoid doubt, subsection (1) prevents the release, even by a court, of an unlawful non-citizen from detention (otherwise than as referred to in paragraph (1)(a), (aa) or (b)) unless the non-citizen has been granted a visa. (4) Subject to paragraphs (1)(a), (b) and (c), if the person is detained as a result of the cancellation of his or her visa under section 501, 501A, 501B, 501BA or 501F, the detention is to continue unless a court finally determines that the detention is unlawful, or that the person detained is not an unlawful non-citizen. … (5) To avoid doubt, subsection (4) or (4A) applies: (a) whether or not there is a real likelihood of the person detained being removed from Australia under section 198 or 199, or deported under section 200, in the reasonably foreseeable future; and (b) whether or not a visa decision relating to the person detained is, or may be, unlawful. (5A) Subsections (4) and (4A) do not affect by implication the continuation of the detention of a person to whom those subsections do not apply. (6) This section has effect despite any other law.

Discussion 12 The resolution of this issue turns upon the operation of s 196(4) of the Migration Act. 13 Section 196(1) requires that an unlawful non-citizen be kept in immigration detention until the happening of one of the events listed in that subsection. The obligation to detain which arises under s 189 continues until one of the listed events occurs. 14 As is usual in matters of statutory interpretation, the operation of s 196(4) must be discerned from the words used. 15 The words used make it clear that the section only applies where the person is detained as a result of the cancellation of a visa under ss 501, 501A, 501B, 501BA or 501F of the Migration Act. 16 These words do not relate to the nature of proceedings or relief sought. Rather, they describe the requirements as to circumstances leading to the person being detained which must be satisfied to bring s 196(4) into operation. 17 In this case, the applicant's visa was cancelled under s 501(3A). 18 As a result of the cancellation of the applicant's visa, as he did not hold a visa that was in effect, he was (and is currently) an unlawful non-citizen. 19 There is no dispute in these interlocutory proceedings that the relevant officer knew or reasonably suspected that the applicant was an unlawful non-citizen and so detained him under s 189. 20 As the applicant was detained as a result of his visa being cancelled under s 501(3A), which provides for mandatory cancellation of a visa if certain conditions are met, it follows that s 196(4) is prima facie satisfied. 21 The applicant contends that, in the legislative context, the mischief addressed by the inclusion of s 196(4) was in circumstances where persons whose visas were cancelled had sought judicial review of the cancellation decision, and so the application of the subsection is restricted in that way. 22 That contention is not consistent with the words used in the Migration Act. 23 Subsection 196(4) does not specify the type of proceedings. The subsection refers to the detention continuing (as required by subsection (1)) "unless a court finally determines that the detention is lawful, or that the person detained is not an unlawful non-citizen". 24 A final determination that the detention is unlawful could arise from proceedings where there is a successful claim of citizenship in which habeas corpus is sought. A determination that the person detained is not an unlawful non-citizen could arise from proceedings, by way of judicial review, in relation to a visa cancellation. The words used concerning a court finally determining that the detention is unlawful or that the person detained is not an unlawful non-citizen do not contemplate proceedings limited to judicial review of a visa cancellation decision. 25 The applicant has referred to BHL19 v Commonwealth of Australia [2021] FCA 462 and Burgess v Commonwealth (2020) 276 FCR 548 in support of his interlocutory application. BHL19 involved the refusal of a protection visa, so s 196(4) was not in issue. Burgess involved an issue around the officer having a continuing state of satisfaction under s 189. In each case, extrinsic material (the Second Reading Speech, the Explanatory Memorandum and the Supplementary Explanatory Memorandum to the Migration Amendment (Duration of Detention) Bill 2003 (Cth), which inserted into s 196 sub-ss (4) to (7)) was referred to. 26 In circumstances where the provisions of the legislation are clear from the words used (as is the case with s 196(4)), it is not necessary to refer to extrinsic material. Of course, the extrinsic material may be relevant in considering the context and purpose of the legislation. I do not believe that the extrinsic material in this case casts any doubt on the meaning of the legislation. 27 The reference to judicial review occurs in the words of the Second Reading Speech to the Bill in these terms: Since the latter part of 2002, the Federal Court has decided that the Migration Act does not preclude the court from making interlocutory orders that persons be released from immigration detention pending the court's final determination of the person's judicial review application. 28 These words do not suggest an intended limitation on the operation of s 196(4). Rather, they describe some cases in which the Court had decided, to that date, that the Migration Act would not preclude the Court from making interlocutory orders releasing an applicant from immigration detention. 29 The Second Reading Speech continues: In its judgements, the Federal Court has indicated that if the parliament wishes to prevent a court from ordering the interlocutory release of a person from immigration detention it must make its intentions unmistakably clear. This bill is intended to achieve this. … The bill ensures that an unlawful non-citizen must be kept in immigration detention pending the determination of any substantive proceedings…" … 30 The Explanatory Memorandum includes the following: OUTLINE … 5. The Bill seeks to prevent the release of a detainee from immigration detention pending a court's determination of the substantive matter as to the lawfulness of the person's detention or whether the person is an unlawful non-citizen. … SCHEDULE 1 - Duration of Detention … 3. The purpose of a new subsection 196 (4) is to make it clear that a person cannot be released from immigration detention pending determination of any substantive proceedings relating to either the lawfulness of the person's detention or whether the person is an unlawful non-citizen. 31 Finally, in the Supplementary Explanatory Memorandum, the "Notes on Amendments" include: 2. The new proposed subsection (4) puts it beyond doubt that if a person is detained under section 196 of the Act as a result of the cancellation of his or her visa under section 501 of the Act, that detention must continue until the final determination of any substantive proceedings relating to either the lawfulness of the person's detention or whether the person is an unlawful non-citizen. 32 The extrinsic material is expressed in wide terms, referring broadly to "any substantive proceedings" where a court finally determined the lawfulness of the detention or whether the person is an unlawful non-citizen. That description does not limit the operation of s 196(4) to proceedings involving judicial review of the visa cancellation decision. Were it relevant, the extrinsic material supports the view I have taken regarding the operation of s 196(4). 33 The applicant also contends that: (a) the respondents' reliance on sections 189 and 196 proceed on a false dichotomy namely that one is either an un-lawful non-citizen or a lawful non-citizen. There is a third category: 'citizen'. The sections could not authorise the detention of a citizen, because a citizen is not an alien, and the concept of "alien" is the constitutional basis for the Migration Act. (b) the respondents' construction of s 196 pays insufficient regard to the text. Section 196(1) speaks of the continuation of detention of "an unlawful non-citizen detained under s 189". It applies to a person who is in fact an unlawful non-citizen detained under s 189. The applicant alleges that he is a citizen who is purportedly detained under s 189. There is nothing in s 196 which suggests that court is deprived of the power to determine on an interlocutory basis whether a person may be a citizen, as distinct from some part of the unlawful non-citizen/lawful non-citizen dichotomy. Section 196(2) expressly provides that s 196(1) "does not prevent the release from immigration detention of a citizen". The respondents' construction requires inserting words into s 196(1) as if it read: "a person suspected of being an unlawful non-citizen and who is detained under s 189". (c) the respondents' reliance on s 196(4) assumes that the person is in fact an unlawful non-citizen. This is a circular argument as the Court has the ability to determine for itself whether the assertion is correct (including in the context of determining an interlocutory application) and if it is not correct (or there is a serious question to be tried as to its correctness) then s 196(4) does not apply. To assert the applicant "is detained as a result of the cancellation of his visa under s 501" is to simply assume that the applicant is not a citizen. 34 It is correct that s 196(1) refers to an unlawful non-citizen detained under s 189. The term "unlawful non-citizen" is defined in s 14. Section 189 operates where an officer "knows or reasonably suspects" that a person is an unlawful non-citizen, and so must detain the person. This factor is not contested in these interlocutory proceedings. This obligation to detain, which arises under s 189, continues until occurrence of one of the events listed in s 196(1). 35 It is incorrect to conclude that s 196(1) applies to a person who is in fact an unlawful non-citizen, or that reliance on s 196(4) assumes the person is, in fact, an unlawful non-citizen. The words used in s 189 are "knows or reasonably suspects". That state of facts can occur in circumstances where a person claims to be a citizen. If that claim (that they are a citizen) is upheld, the Court would likely conclude that the detention was unlawful given there is no constitutional and legislative basis for the detention of citizens under the Migration Act. This factual scenario is also contemplated in s 196(4) where it provides that the detention must continue unless a court finally determines that the detention is unlawful, or that the person detained is not an unlawful non-citizen. 36 Section 196(2) does not assist the applicant. Section 196(2) makes it clear that s 196(1) does not prevent the release from immigration detention of a person who is, as a matter of fact, a citizen or a lawful non-citizen. Whether the applicant is a citizen is, of course, the subject of these proceedings and to be determined by the Court. In these circumstances, the provisions of s 196(4) have application. 37 I note that this issue was considered in CZCV v Commonwealth of Australia [2020] FCA 1864 which involved proceedings contending unlawful detention and seeking the issue of a writ of habeas corpus and damages for false imprisonment. In that case, Rangiah J concluded (at [16]-[18]) that the Court had no power to order that CZCV be released from immigration detention on an interlocutory basis in circumstances where CZCV was an unlawful non-citizen and detained as a result of their visa being cancelled under s 501(3A). The application for interlocutory relief was dismissed. I agree with the reasons outlined by Rangiah J. 38 The issue was also considered by single judges in Applicant in WAD 230/2014 v Minister for Immigration & Border Protection [2014] FCA 1351, Durani v Minister for Immigration and Border Protection (2013) 223 FCR 391, AFF20 v Minister for Home Affairs [2020] FCA 546 and by the Full Court in Ongel v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 239. Whilst those cases involved applications for judicial review in respect of visa cancellation decisions, in each case, the application for interlocutory relief was dismissed on the basis that the Court had no power to grant an order for the release of an unlawful non-citizen from detention pending the hearing of the substantive application. I see no reason to depart from the reasoning in those cases.

Conclusion 39 I conclude that, in the circumstances outlined in these proceedings, s 196(4) requires that the applicant be detained until the occurrence of one of the events outlined in s 196(1) unless the Court finally determines that the detention was unlawful or the applicant is not an unlawful non-citizen. It follows that s 196(4) does not permit the release of the applicant from immigration detention on an interlocutory basis where the detention is the result of the applicant's visa having been cancelled under s 501(3A). 40 In light of my conclusion regarding the application of s 196(4) it is not necessary for me to consider whether, in relation to the interlocutory relief sought, there is a serious question to be tried and whether the balance of convenience weighs sufficiently in favour of the applicant. 41 As to the disposition of these proceedings, I note that the hearing has been set down to take place on 24 and 26 November 2021, in which the substantive question of whether the applicant is a citizen will be heard.

Orders 42 I dismiss the interlocutory application. I note that the respondent has sought an order that the costs of and incidental to the interlocutory application be costs in the cause. I will hear from the applicant regarding the question of costs. I certify that the preceding forty-two (42) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Thomas.