GKX18 v Minister for Immigration and Multicultural Affairs

Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).

1. This is an application in a proceeding filed on 28 January 2025 for summary dismissal pursuant to r.13.13(a) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 ("the Rules") of grounds 1 and 2 of the amended application filed by the applicant on 8 October 2024. Substantively, the amended application filed on 8 October 2024 sought a writ of habeas corpus.
2. The applicant was in immigration detention when he filed his amended application filed on 8 October 2024. However, on 16 October 2024, before court began on the second day scheduled for the hearing of the habeas corpus application, the Minister gave the applicant a Bridging Visa E. The Bridging Visa E was valid for four months and was subject to certain conditions. Pursuant to the Bridging Visa E, the applicant was released from immigration detention.
3. On 19 February 2025, before the summary dismissal application came on for hearing on 26 March 2025, the Minister had given the applicant a Bridging Visa R. It was of indefinite duration and was subject to 27 conditions.
4. On 26 February 2025, the applicant filed a further amended application in which he added a challenge to condition 8510 to his previous Bridging Visa E. That condition required him to apply for a passport, which could only have meant an Iraqi passport. The Minister agreed that condition 8510 was invalidly imposed on the applicant's Bridging Visa E and the court made a declaration to that effect.
5. Essentially, the respondents argued that the writ of habeas corpus was not available to the applicant as he was not in immigration detention. The applicant argued that the writ of habeas corpus was still available to him because the conditions of the Bridging Visa R were so onerous that his liberty was relevantly infringed.

1. The background to this matter is set out in GKX18 v Minister for Immigration and Multicultural Affairs (No 2) [2025] FedCFamC2G 718.

(a) their application in a proceeding seeking summary dismissal filed on 28 January 2025;

(b) their submissions filed on 28 February 2025 regarding the summary dismissal application;

(c) their submissions in reply filed on 17 March 2025 regarding the summary dismissal application;

(d) the affidavit affirmed by the applicant on 25 February 2025;

(e) the affidavit affirmed by the applicant on 7 March 2025; and

(f) the affidavit affirmed by Alison Mary Battisson on 24 February 2025.

(a) his response to the application for summary dismissal filed on 27 February 2025;

(b) his submissions filed on 7 March 2025 regarding the summary dismissal application;

(c) the Administrative Appeals Tribunal decision in case no. 2204230 dated 19 April 2022, located at CB25-53;

(d) the affidavit affirmed by Brett Roder on 2 October 2024;

(e) the affidavit affirmed by the applicant on 8 October 2024;

(f) the affidavit affirmed by Alison Mary Battisson on 8 October 2024;

(g) exhibit-1 in this proceeding, being an email from the respondents' solicitor to the applicant's solicitor dated 11 October 2024;

(h) the transcript of the hearing in this proceeding on 11 October 2024;

(i) the affidavit affirmed by Alison Mary Battisson on 3 February 2025;

(j) the affidavit affirmed by Alison Mary Battisson on 5 February 2025;

(k) the affidavit affirmed by Alison Mary Battisson on 24 February 2025;

(l) the affidavit affirmed by the applicant on 25 February 2025;

(m) the orders made in this matter on 26 February 2025;

(n) the affidavit affirmed by the applicant on 7 March 2025;

(o) the s.78B notice of a constitutional matter served on the Attorneys-General on 11 March 2025;

(p) exhibit-4 in this proceeding, being the notice of variation to condition 8401 for a Bridging R (class WR) Removal Pending (subclass 070) visa for GKX18 dated 11 March 2025;

(q) the applicant's aide-memoire emailed to chambers and the respondents on 21 March 2025; and

(r) the applicant's speaking notes emailed to chambers and the respondents on 24 March 2025.

1. Rule 13.13(a) of the Rules provides as follows:

The Court may order that a proceeding be stayed, or dismissed generally or in relation to any claim for relief in the proceeding, if the Court is satisfied that:

(a) the party prosecuting the proceeding or claim for relief has no reasonable prospect of successfully prosecuting the proceeding or claim ...

1. A party may have a reasonable prospect of successfully prosecuting his claim if there is a reasonably arguable question of fact or law.

1. In the amended application filed on 8 October 2024, the applicant sought:

1. A writ of habeas corpus or a writ in the nature of habeas corpus.

1. A mandatory injunction restraining the Respondents from detaining the Applicant under section 189(1) of the Migration Act 1958 (Cth).

3. Damages for unlawful imprisonment.

4. Costs.

1. In the further amended application filed on 26 February 2025, the applicant also sought:

An order declaring, quashing or otherwise dealing with the decision to invalidly impose Condition 8510 on the applicant's bridging E visa granted 16 October 2024.

1. A declaration was made on 26 February 2025, with the agreement of the respondents, that:

Condition 8510 was not validly imposed on the applicant's bridging visa E ("the applicant's BVE") granted on 16 October 2024.

1. Grounds 1 and 2 of the amended application filed by the applicant on 8 October 2024, and further amended on 26 February 2025, were the only grounds in the amended and further amended applications. Grounds 1 and 2 in both those versions of the application are as follows:
   1. The Applicant's on-going detention under section 189(1) of the Migration Act 1958 (Cth) (Act) is unlawful.

Particulars

(a) On 31 January 2017, the Applicant arrived in Australia on a Partner (Provisional) Subclass 309 visa.

(b) The Applicant's wife subsequently withdrew her sponsorship of the Applicant's partner visa.

Bridging C visa

(c) On 24 August 2017, the Applicant was granted a Bridging C (Subclass 030) visa.

(d) On 20 October 2017, the Applicant's Bridging C Visa was cancelled. The Applicant applied for review of his Bridging C Visa cancellation in the Administrative Appeals Tribunal (Tribunal).

(e) On 19 April 2022, the Tribunal found that that the Applicant was owed non-refoulement obligations (at [165], [167], [171], [174], [176], [177], [181]) (AAT Case No. 2204230)).

Protection visa

(f) On 16 April 2018, the Applicant applied for a protection visa. On 4 September 2018, a delegate of the First Respondent refused the Applicant's protection visa application. The Applicant sought review by the Tribunal of the decision to refuse his application for a Protection visa.

(g) On 13 November 2018, the Tribunal affirmed the decision of the delegate to refuse the Applicant's application for a protection visa. The Applicant sought judicial review of the Tribunal's decision to refuse his application for a protection visa.

(h) On 26 July 2019 the Federal Circuit Court of Australia, as it then was, dismissed the Applicant's appeal against the decision of the Tribunal to refuse to grant the Applicant a protection visa (GKX18 v Minister for Home Affairs & Anor [2019] FCCA 2028).

(i) The Applicant sought judicial review of the Federal Circuit Court decision. On 5 March 2020 the Federal Court of Australia dismissed (GKX18 v Minister for Home Affairs [2020] FCA 263).

(j) The Applicant is statutorily barred from applying for another protection visa.

Ministerial Intervention requests

(k) On 9 March 2024, the Applicant requested that First Respondent lift the statutory bar under s48A of the Act to enable the Applicant to apply for a protection visa. The First Respondent has not replied to this request. There is no timeframe in which the First Respondent is required to reply and is not required to reply at all.

(l) The Applicant had previously made six separate requests between March 2020 and January 2022, under sections 195A, 195AB and 417 of the Act for the First Respondent to intervene by exercising the First Respondent's personal discretion to grant the Applicant a protection visa or release the Applicant from immigration detention. None of those applications were referred to the First Respondent and the First Respondent did not intervene and grant the Applicant a visa or release the Applicant from immigration detention.

Unlawful imprisonment

(m) In NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs [2023] HCA 37 (NZYQ) at [55], the High Court unanimously held:

"For the reasons already given, expressing the constitutionally permissible period of executive detention of an alien who has failed to obtain permission to remain in Australia as coming to an end when there is no real prospect of removal of the alien from Australia becoming practicable in the reasonably foreseeable future follows directly from the principle in Lim. This is the appropriate expression of the applicable constitutional limitation under a statutory scheme where there is an enforceable duty to remove an alien from Australia as soon as reasonably practicable."

(n) The application of NZYQ is not limited to situations in which a person has a protection finding under s 197C(3) of the Act.

(i) has been found to be owed non-refoulement obligations;

(ii) has no right to reside in any other country other than Iraq; and

(iii) has a criminal record.

(p) The Respondents have a long-term policy of not returning people to a country of reference in breach of non-refoulement obligations (Human Rights Committee, Concluding observations on the sixth periodic report of Australia, Addendum: Information received from Australia on follow-up to the concluding observations (CCPR/C/AUS/CO/6/Add.1, 2 December 2019) ('Information received from Australia' at [5]).

(q) It follows that the Applicant must be released from detention by the Respondents forthwith.

1. The Applicant, from at least 19 April 2022, has been falsely imprisoned or otherwise unlawfully detained by the Respondents.

(a) The particulars of Ground 1 are repeated.

1. On 28 January 2025, the respondents filed an application in a proceeding seeking an order that:

Grounds 1 and 2 of the amended application lodged on 8 October 2024 be summarily dismissed pursuant to r 13.13(a) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).

1. That was before the further amended application was filed on 26 February 2025. However, the matter proceeded on the basis that the summary dismissal application applied to the further amended application filed on 26 February 2025.
2. In his written submissions on the summary dismissal application filed on 7 March 2025, the applicant stated in paragraph 2 that:

(a) he pressed his claim for habeas corpus;

(b) he did not press his claim for an injunction in its present form; and

(c) he sought leave to further, further amend his application to address the Bridging Visa R that had been granted on 19 February 2025.

1. In a footnote to his written submissions filed on 7 March 2025, the applicant said that the proposed amendment would be to add prayers for relief to the effect that:

"A mandatory injunction requiring the Respondents to remove the restraints on the liberty of the applicant by the conditions on his Bridging Visa R of 19 February 2025, or any such condition or any combination of such conditions; or alternatively an order declaring the same to be invalid or quashing the same or an order of mandamus requiring the removal of the same or an order of prohibition prohibiting the enforcement of the same" and "Any further or other order the Court deems fit".

1. At the hearing of the summary dismissal application on 24 March 2025, the respondents opposed the applicant being given any such leave to amend.
2. In his speaking notes emailed to chambers on 24 March 2025, and at the hearing of the summary dismissal application, Mr Rares indicated that he sought that the writ of habeas corpus be issued forthwith, in the context of the summary dismissal application.
3. The respondents argued that the court could not, in the context of the summary dismissal application, grant habeas corpus, but could only grant or dismiss the summary dismissal application.

1. Grounds 1 and 2 in the further amended application as it stands were directed to the applicant's physical detention, to which he was subject at the time the amended application was filed on 8 October 2024. The proposed amendment is directed to the present circumstances, which are that the applicant is no longer in physical detention. However, he is subject to visa conditions which he claims, for habeas corpus purposes, amount to detention because they infringe too excessively on his liberties.
2. The respondents opposed the applicant being granted leave to amend for a number of reasons, including that notice of the proposed amendment was given via a footnote to written submissions that did not identify the particular visa conditions being attacked. However, the applicant identified the particular visa conditions being attacked to some extent in his written submissions and further in oral submissions. I consider that the applicant gave sufficient notice of the relevant conditions, but, more importantly, gave sufficient notice of the overall point that the visa conditions restricted his liberty to such an extent that habeas corpus was available to him.
3. In considering whether to grant leave to amend, a critical point is whether the proposed amendment has a reasonable prospect of success. The parties in their submissions intertwined the issues of the availability of habeas corpus, the viability of Grounds 1 and 2 and the prospects of success of the proposed amendment, so I will, largely, do the same.
4. The respondents noted that, in Plaintiff M68 (2016) 257 CLR 42; (2016) 327 ALR 369; (2016) 90 ALJR 297; [2016] HCA 1 at [165], Gageler J, as his Honour then was, quoted House of Lords authority that:

[T]he function of a return to a writ of habeas corpus is to set out the facts and the grounds of the detention to enable the court mentioned in the writ to determine two questions. First, whether the person to whom the writ is addressed, either directly by himself or by his agents, is detained in custody of the person named in the writ. And second, if so, was that detention legal or illegal?

The decision shows that the question of the amenability to the writ is quite distinct from the legality or illegality of the detention. Amenability to the writ is determined solely as a question of whether the person to whom the writ is addressed has de facto control over the liberty of the person who is being detained, in relation to which actual physical custody is sufficient, but not essential.

1. The respondents argued that they were focussed on the first question, being whether the applicant was detained by the respondents. The respondents argued that the applicant clearly was not detained by the respondents, because he had been released from immigration detention and was in the community on a bridging visa.
2. However, that submission did not take account of Gageler J's statement that, in determining whether a respondent has de facto control of an applicant's liberty, "actual physical custody is sufficient, but not essential". That was the critical point on which the applicant's proposed amendment was based, and the point on which he claimed to be still "detained", as stated in Grounds 1 and 2, for the purposes of habeas corpus. The applicant argued that the conditions on his bridging visa meant that he was still under the respondents' control to such an extent that the writ of habeas corpus was available to him.
3. On the other hand, the respondents relied on the decision of the Full Court of the Federal Court in Save the Children Australia v Minister for Home Affairs and Another (2024) 304 FCR 262; (2024) 184 ALD 481; [2024] FCAFC 81 at [50] where the court said that, "Assuming the correctness of the UK authorities", it was "sufficient for present purposes" to accept the formulation in Rahmatullah v Secretary of State for Defence [2012] All ER (D) 333 (Oct); [2012] UKSC 48; [2013] 1 AC 614; [2013] 1 All ER 574; [2012] 3 WLR 1087 at [64] as follows:

An applicant for the writ of habeas corpus must therefore demonstrate that the respondent is in actual physical control of the body of the person who is the subject of the writ or that there are reasonable grounds on which it may be concluded that the respondent will be able to assert that control.

1. Save the Children Australia brought an application for habeas corpus against the Minister for Home Affairs in relation to a number of women and children who were held in refugee camps in Syria because of their association with ISIS (Islamic State of Iraq and Syria). The application failed, at first instance and on appeal, because it was not shown that the Minister for Home Affairs would have been able to assert control over the women and children. The respondents argued that, in the present case also, they were unable to assert actual physical control over the applicant's body.
2. The applicant submitted that, in the present case, if the applicant breached any of the many significantly onerous and sometimes ambiguous conditions attached to his visa, or if the Minister formed the view, even wrongly, that the applicant had breached a visa condition, he could require his officers to take the applicant into detention again and thus assert physical control over his body. In view of the numerous visa conditions applying to the applicant's visa, the possibility that he might at some point inadvertently breach one of them, and be taken into custody, is not fanciful or remote. Or the Minister could cancel the applicant's visa for presently unforeseen reasons, such as a change in policy, which would require the applicant to be taken into immigration detention. I consider that it is reasonably arguable that that there is a realistic possibility that the Minister will be able to assert actual physical control over the applicant's body, depending on the applicant's conduct or the Minister's preferences.
3. The respondents also relied on the decision of the Full Court of the Federal Court in Ruddock v Vardalis (2001) 110 FCR 491; (2001) 66 ALD 25; (2001) 183 ALR 1; [2001] FCA 1329. In that case, the applicants were rescued at sea by MV Tampa and were not permitted to land in Australia. It was held that this did not constitute restraint by the Commonwealth, and the restrictions on the applicants' freedom of movement were just incidents of the circumstances they found themselves in.
4. In reaching that conclusion, French J, as his Honour then was, with whom Beaumont J agreed, said:
   1. There are many forms of restraint on liberty that may be imposed under colour of lawful authority. While "close custody" may have been a condition of the remedy in the past, it is not a condition that should fetter artificially the function of habeas corpus as a remedy for unauthorised restraint be it total or partial. ...
   2. United States' cases favour the view that even a partial restraint will attract the writ albeit they must be read in their constitutional context. Jones v Cunningham concerned a prisoner on parole held to be "in custody" for the purposes of habeas corpus. The statute conferring the relevant jurisdiction conditioned it on the applicant being "in custody" - 28 USC 2241. The Supreme Court acknowledged that the chief use of habeas corpus had been to seek the release of a person held in close physical custody. Yet there were cases to which it referred in England where "the writ was recognised as a proper remedy even though the restraint was something less than close physical confinement" (at 238). The court said of the writ (at 243):

"It is not now and never has been a static narrow formalistic remedy; its scope has grown to achieve its grand purpose - the protection of individuals against erosion of their right to be free from wrongful restraints upon their liberty."

In the end it is necessary to consider whether on the facts of the case there is a restraint on liberty which is not authorised by law. The relevant liberty is freedom of movement.

1. The applicant said at paragraph 9 of his submissions filed on 7 March 2025 that the applicant's liberty was limited by condition 8401 to which his visa was subject. That condition was as follows:

8401 - Report as Directed

The holder must report:

Frequency: you are directed to report daily, Monday to Sunday (emphasis added)

Times: you must report between the hours of 8.30am and 2.00pm local time.

Manner: you are directed to report by telephone by calling 1800 717 510.

1. However, that condition was amended on 11 March 2025, about two weeks before the hearing of the summary dismissal application, to only require reporting each Friday.
2. In any event, the respondents submitted that a telephone reporting requirement did not come close to being a restriction on freedom of movement sufficient to justify a writ of habeas corpus. Taken alone, that is probably correct. However, the applicant's visa was subject to 26 other conditions, and, as discussed below, it is reasonably arguable that the liberties protected by habeas corpus are not only freedom of movement.
3. The applicant also relied on condition 8616 to which his visa is subject. That condition states that:

8616 - Notify contact with certain individuals or organisations

(1) The holder must notify Immigration of the details of any contact with any individual who is known by the holder to have been charged with, or convicted of, a criminal offence.

(2) Subclause (1) does not apply to:

(a) contact in the course of attending a therapeutic or rehabilitative service; or

(b) contact in connection with legal proceedings or legal advice; or

(c) incidental contact.

1. The applicant submitted that this was a restraint on his liberty because, for example, if he had a girlfriend who had been convicted of jaywalking, he would have to notify Immigration every time he had contact with her, and if he forgot on one occasion, he would be in breach of his visa conditions and liable to be physically detained again.
2. The respondents submitted that condition 8616 did not restrict the applicant's freedom of movement, in the sense of confining him within any particular perimeter, as required by the authorities. However, in Ruddock v Vardalis, at [69], Black CJ said:

... it is not necessary to show actual detention and complete loss of freedom to found the issue of a writ of habeas corpus. Rather, custody or control are the requisite elements: R v Secretary of State for Home Affairs; Ex parte O'Brien [1923] 2 KB 361 at 398 per Atkin LJ and at 381 per Bankes LJ. As Clark and McCoy put it, "Control is the hypotenuse between the applicant and the respondent under the remedy": D Clark and G McCoy, The Most Fundamental Legal Right: Habeas Corpus in the Commonwealth (2000), p 200, and the applicant must be subject to restrictions not shared by the public generally: see Eatts v Dawson [1990] FCA 158; (1990) 21 FCR 166 at 176 relying on Jones v Cunningham [1963] USSC 8; (1963) 371 US 236.

1. One authority that did use the word perimeter is Ruhani v Director of Police (No 2) (2005) 222 CLR 580; (2005) 219 ALR 270; (2005) 79 ALJR 1484; [2005] HCA 43, where Kirby J, in dissent, quoted, apparently with approval, the statement of O'Connell CJ of the Supreme Court of Nauru in the reasons for the judgment appealed from, that:

I have no difficulty in finding that, for the purposes of habeas corpus, the Applicants were in a custodial situation. They were confined to a particular location and that location had certain restraints such as perimeter fencing, controlled entrance and exit, and an overall police control ... [G]iven the detention, the issue at stake was whether it was legal or not. (footnote omitted) (emphasis added)

1. However, that was not to say that any particular perimeter was a necessary feature for a writ of habeas corpus.
2. In any event, the applicant submitted that conditions 8622 and 8623, to which his visa was subject, restricted his freedom of movement. Those conditions are as follows:

(1) If the holder has been convicted of an offence that involves a minor or any other vulnerable person, the holder must not perform any work, or participate in any regular organised activity, involving more than incidental contact with a minor or any other vulnerable person.

(a) whether the work or activity is for reward or otherwise; and

(b) whether or not a working with children or vulnerable people check (however described) is required in relation to the work.

8623 - Must not approach school or childcare centre

If the holder has been convicted of an offence that involves a minor or any other vulnerable person, the holder must not go within 200 metres of a school, childcare centre or day care centre.

1. According to the Tribunal decision dated 19 April 2022, the offences that the applicant pleaded guilty to were:
   • Assault occasioning actual bodily harm under s 59(1) of the Crimes Act 1900 (NSW);
   • Stalking or intimidation with intent to cause fear of physical or mental harm under s 13(1) of the Crimes (Domestic and Personal Violence) Act 2007 (NSW); and
   • Common assault under s.61 of the Crimes Act 1900.
2. The Tribunal summarised the agreed police fact sheet as follows:
   • At 7pm on Tuesday 30 May 2017 the applicant and his ex-wife were returning home in a motor vehicle driven by the applicant's ex-wife;
   • The applicant and his ex-wife were having a verbal argument when the applicant grabbed his ex-wife by her left hand which he squeezed tightly and then twisted her wrist causing her a severe amount of pain;
   • The applicant's ex-wife stopped the vehicle in the middle of the road outside their house and ran inside where there were four children, being the ex-wife's three children from a previous marriage and her then six-month old daughter with the applicant;
   • The applicant has entered the house while his ex-wife screamed at him to leave her alone, with the applicant grabbing his ex-wife, she freeing herself and running out of the house and the applicant grabbing his ex-wife and dragging her back into the house by her shoulders "to stop her screaming";
   • The applicant has hit his ex-wife on the back with a coat hanger and has bitten her on the back and right arm;
   • The applicant's ex-wife heard their then six-month old daughter crying at the rear of the house and went to her and picked her up to comfort her;
   • The applicant snatched their daughter from his ex-wife and "dropped the child onto the floor on a small mattress" (sic);
   • The applicant's ex-wife picked up their daughter at which time their daughter vomited on the applicant's ex-wife ...
3. The daughter was taken to hospital but the hospital report recorded no bruising, swelling or other injury.
4. In relation to conditions 8622 and 8623, about where he can work and live, the applicant filed an affidavit he affirmed on 7 March 2025. He said, and there was no challenge to any of this at the summary dismissal application, so, for present purposes, I accept, that:

(a) officers from Australian Border Force ("ABF") required him to vacate his premises because he was living 199 metres from a school;

(b) he spent that night in a park, the next three nights in a hotel funded by a friend, and since then has lived in an apartment where he shares a bedroom with a man he does not know;

(c) ABF has permitted him to work as a barber, which is his profession, provided that he does not cut a child's hair or work with a child (such as an apprentice); and

(d) he does not know who would employ him in such circumstances.

1. The respondents submitted that conditions 8622 and 8623 did not relevantly restrict the applicant's freedom of movement, because no one can go absolutely anywhere (such as on another person's private property without permission) and the restrictions on the applicant's freedom of movement were analogous. The respondents submitted that the applicant could go anywhere in Australia, except within 200 metres of a school, childcare centre or daycare centre. The respondents submitted that the applicant did not point to any case where that kind of limitation constituted a restriction on a person's freedom of movement sufficient to justify a writ of habeas corpus.
2. The respondents also submitted that the US case, Jones v Cunningham [1963] USSC 8; 371 U.S. 236 (1963); 83 S.Ct. 373 (1963); 9 L.Ed.2d 285(1963); 92 A.L.R.2d 675 (1963), did not assist the applicant because, in that case, the petitioner was confined to a particular house and a particular job, at the discretion of his parole officer. The respondents submitted those types of restrictions are wholly different to the types of restriction that apply in the present case. Indeed, the restrictions in the present case are the inverse of those in Jones v Cunningham. In the present case, the conditions permit the applicant to live and work anywhere except in certain places. In Jones v Cunningham, the petitioner was required to live and work only in certain places. However, the applicant's point was that, realistically, he cannot work anywhere at all in the profession he is trained in, and he cannot find acceptable accommodation, because of the conditions on his visa.
3. The respondents also referred to Ugur v Attorney General for New South Wales [2019] NSWCA 86. In that case, the petitioner sought a writ of habeas corpus on the basis that, he claimed, someone had inserted a microchip in his body which monitored him and restricted his freedom of movement. The judge at first instance summarily dismissed the claim on the basis that "the factual basis for the claim is entirely without substance." On appeal, White JA, with whom Meagher and Brereton JJA agreed, said that:
   1. It appears that the primary judge considered that Mr Ugur's claim for an order in the nature of a writ of habeas corpus could not be maintained if he was under no form of detention, even if a chip had been inserted in his body by which he was monitored and which was used to trigger physical sensations, such as tooth pain or erection of his penis. That may well be right, but the limits of the writ of habeas corpus is a triable question of law. Mr Ugur submits that habeas corpus lies if he is restrained in any ways that are not shared by the general public (citing Ruddock v Vadarlis [2001] FCA 1329; (2001) 110 FCR 491 at 509). In any event, if the claim that Mr Ugur is being monitored in this way by the Attorney General, or a person for whose conduct the Attorney General is liable, is not fanciful, the result should not have been the dismissal of the proceeding, but an order that Mr Ugur plead a case; perhaps to plead assault and battery. (emphasis added)
   2. As the primary judge said, and as Mr Ugur, despite his voluminous submissions, did not contradict, he is not physically restrained from moving where he pleases, except to the extent that he feels himself to be so constrained because he feels that people are watching him and monitoring him.
4. White JA concluded that Mr Ugur's claims were fanciful, and the primary judge had been correct to summarily dismiss the matter.
5. The respondents also noted that Brereton JA, who agreed with White JA, said in Ugur that:
   1. I also agree that Mr Ugur's application for a writ of habeas corpus was rightly summarily dismissed. Mr Ugur is manifestly under no physical confinement or restraint. Though that is significant, it is not necessarily decisive; in Antunovic v Dawson, Bell J explained - in summarising what the primary judge rightly described as including a comprehensive survey of the applicable legal principles - that there may be a restraint on personal liberty not only by imprisonment or detention, but also by imposition of restrictions on liberty or freedom of movement which are not shared by the public generally:

[113] On the basis of this analysis, close custody, imprisonment, detention or something analogous is not a necessary element of the right to habeas corpus, although restraints of that kind are clearly covered [R v Secretary of State for Home Affairs; Ex parte O'Brien [1923] 2 KB 361 at 391 per Scrutton LJ and 398 per Atkin LJ; Ruddock v Vadarlis [2001] FCA 1329; (2001) 110 FCR 491 at 509, [69] per Black CJ and 547, [209] per French J]. The purpose of the writ is to give a remedy against unlawful restraints on personal liberty, which is not to be narrowly defined [Jones v Cunningham [1963] USSC 8; (1963) 371 US 236 at 243; Re C (Mental Patient: Contact) [1993] 1 Fam Law R 940 at 944 per Eastham J; Victorian Council for Civil Liberties v Minister for Immigration and Multicultural Affairs [2001] FCA 1297; (2001) 110 FCR 452 at 474, [86] per North J; Ruddock v Vadarlis [2001] FCA 1329; (2001) 110 FCR 491 at 509, [69] per Black CJ, 547, [209] per French J]. The restraint may be imposed directly or indirectly. It may be partial or total. The question is whether the person imposing the restraint has the lawful custody, power or control of the person being restrained [Barnardo v Ford [1892] UKLawRpAC 34; [1892] AC 326 at 338 per Lord Herschell; R v Secretary of State for Home Affairs; Ex parte O'Brien [1923] 2 KB 361 at 391 per Scrutton LJ and 398 per Atkin LJ]. The liberty protected by common law habeas corpus is broader than the liberty protected by the human right to personal liberty and security in s 21(1) of the Charter. For the purposes of habeas corpus, it is a restraint on personal liberty to imprison or detain somebody [See, for example, R v Jackson [1891] UKLawRpKQB 55; [1891] 1 QB 671 at 680 per Lord Halsbury LC, 682 per Lord Esher] and also to impose restrictions on their liberty or freedom of movement which are not shared by the public generally [Jones v Cunningham [1963] USSC 8; (1963) 371 US 236 at 240; Re C (Mental Patient: Contact) [1993] 1 Fam Law R 940 at 944; Victorian Council for Civil Liberties v Minister for Immigration and Multicultural Affairs [2001] FCA 1297; (2001) 110 FCR 452 at 474, [86] per North J; Ruddock v Vadarlis [2001] FCA 1329; (2001) 110 FCR 491 at 509, [69] per Black CJ, 547, [211] per French J]. That freedom is a human right specified in s 12 of the Charter.

1. If Mr Ugur were, as he asserts, subject to some kind of electronic monitoring by means of the insertion into his body of some chip, then it is conceivable though by no means clear that the writ of habeas corpus might be available. In any event, and as White JA points out, the appropriate outcome in that event would have been an order that he replead his case, rather than for its summary dismissal. However, the notion that he is subject to such monitoring is fanciful.

1. Brereton J referred to "restrictions on liberty or freedom of movement which are not shared by the public generally". Arguably, that means restrictions on liberty (such as being subject to conditions that members of the public generally are not subjected to) or restrictions on freedom of movement. However, the respondents argued that was not the correct reading. They argued that the relevant liberty was freedom of movement only. In my view, the opposite view is reasonably arguable.
2. The respondents conceded, as White JA said in Ugur, that the limits of the writ of habeas corpus is a triable question of law. They also conceded that, if there was an evidentiary basis to proving restraint, the applicant might be given a chance to replead his case. However, the respondents submitted that the applicant's case as it was currently before the court, which focussed on detention under s.189(1) of the Act, could not possibly be made out. On the other hand, the applicant's case was that the conditions of his visa restricted his liberties to such an extent that he was "detained" for the purposes of habeas corpus, and there was a not remote or not fanciful possibility that he would be physically detained in the future if he a breached a visa condition or the Minister had a change of mind. In my view, these points are reasonably arguable.
3. The respondents referred to The Law of Habeas Corpus (3__rd edition), Judith Farbey and R.J. Sharpe, Oxford University Press 2011 to say that, in cases of bail, people seeking habeas corpus normally surrendered to the authorities. However, the book also said numerous things that were contrary to the thrust of the respondents' case that habeas corpus was only available in cases of major restrictions on freedom of movement. The book said, in chapter 8:

1. Restraint of Liberty as a Basis for the Writ

Habeas corpus is a quick, efficient remedy which may in principle be used at any stage of the legal process, and there are a number of conceivable situations where a party who is not actually in a prison cell may wish to seek the relief of habeas corpus. A person's liberty can be curtailed, yet not completely taken away, and the person so restrained may wish to question the legality of the restraint, especially if no other remedy is available or appropriate.

The authorities do not define with precision the degree of confinement that will justify the issue of a writ of habeas corpus. It has probably been assumed from the very nature of the remedy that there must be some form of physical restraint before the writ can issue.

In this chapter, the possibility of using habeas corpus to question the legality of a number of restraints less severe than actual custody is considered. It is argued that to avoid 'watering down' the remedy of habeas corpus, it should only be used where there is some significant curtailment of personal freedom. This, however, does not exclude the use of the writ where the applicant is not in actual custody: it merely requires the court to assess the nature of the control or restraint, and to quantify its gravity. If it appears to bear the weighty consideration of habeas corpus, then there is no reason to refuse to allow the writ to be used.

(a) Quantitative Restraints

A distinction may be drawn between two types of restraint, labelled here, for want of better expressions, quantitative and qualitative restraints. The first, quantitative restraint, signifies the confinement of a person within a given perimeter. The most obvious example is incarceration in a prison or detention facility, where there can be no doubt that habeas corpus is appropriate. Habeas corpus has been used to test the legality of other kinds of confinement, such as in a hospital, in a camp, or on a ship. In these situations, there has been no doubt that habeas corpus is appropriate. It may be asked, however, whether the writ is only available to test a restraint of a relatively close nature.

There had until recently been little discussion of whether habeas corpus may be used to test a lesser sort of territorial restraint. ...

It is submitted that habeas corpus is not restricted to situations where the applicant is confined within a gaol or some other such close perimeter. A restraint within a broader circumference may very often be more than a trifling inconvenience. ... These sorts of restraints may be seen as something of the order of a significant restraint on the liberty of the subject, and on that account, habeas corpus may be an appropriate remedy.

(b) Qualitative Restraints

As well as territorial restraints, the freedom of the individual may be curtailed in a more qualitative sense. This occurs where the individual's right to live and to come and go as he or she pleases is restricted even though there is no confinement within a given perimeter. Again, many examples may be imagined, and in fact, the appropriateness of testing the legality of this kind of restraint on habeas corpus has arisen more frequently than has the issue of quantitative restraint.

...

(k) Conclusion

On the basis of the authorities, there would seem to be little doubt that habeas corpus can be used in several situations where the applicant is not actually incarcerated. The courts have given little consideration to the principles at stake, but have allowed the writ to be used to question a variety of non-custodial restraints. ...

The idea of personal liberty - that is, the physical freedom to come and go as one pleases - is considered to possess special value in the common law tradition. The importance which is attached to habeas corpus parallels this value. The writ is considered to provide an assurance that personal freedom will always be protected, and there may be a fear that if used in situations which do not plainly involve a significant curtailment of personal freedom, the force of the writ may be 'watered down'. On the other hand, many restraints which involve less than complete incarceration may still merit the weighty consideration which is symbolized by habeas corpus. It will not weaken the remedy to allow it to be used so long as that which is challenged palpably constitutes a restriction on personal liberty.

It is submitted that when the question is raised there should be an assessment of the nature of the control or restriction of rights which is challenged and a determination made as to whether that circumstance would ordinarily be seen as a significant curtailment of personal freedom. If a restraint satisfies that test, the writ of habeas corpus should be available to question its legality.

(footnotes omitted)

1. The applicant submitted that habeas corpus may issue where there are any restraints not shared by the public generally, and that the restraints may be imposed directly or indirectly, and may be partial or total. The applicant submitted that, in habeas corpus matters, there were two distinct lines of authority, one dealing with detention and one dealing with restrictions on liberty.
2. In relation to the latter, the applicant relied particularly on Jones v Cunningham, which concerned parole conditions. The applicant emphasised that that case was not based on a quirk of the US Constitution, but was based on a long history of habeas corpus cases, particularly in the United Kingdom. The applicant noted that , in Jones v Cunningham, the court said, at pages 238, 240, 242 and 243:

... To determine whether habeas corpus could be used to test the legality of a given restraint on liberty, this Court has generally looked to common-law usages and the history of habeas corpus both in England and in this country.

In England, as in the United States, the chief use of habeas corpus has been to seek the release of persons held in actual, physical custody in prison or jail. Yet English courts have long recognized the writ as a proper remedy even though the restraint is something less than close physical confinement. ...

...

... History, usage, and precedent can leave no doubt that, besides physical imprisonment, there are other restraints on a man's liberty, restraints not shared by the public generally, which have been thought sufficient in the English-speaking world to support the issuance of habeas corpus.

...

It is not relevant that conditions and restrictions such as these may be desirable and important parts of the rehabilitative process; what matters is that they significantly restrain petitioner's liberty to do those things which in this country free men are entitled to do. Such restraints are enough to invoke the help of the Great Writ. Of course, that writ always could and still can reach behind prison walls and iron bars. But it can do more. It is not now and never has been a static, narrow, formalistic remedy; its scope has grown to achieve its grand purpose--the protection of individuals against erosion of their right to be free from wrongful restraints upon their liberty. While petitioner's parole releases him from immediate physical imprisonment, it imposes conditions which significantly confine and restrain his freedom; this is enough to keep him in the "custody" of the members of the Virginia Parole Board within the meaning of the habeas corpus statute ...

(footnotes omitted)

1. The applicant also emphasised that, if the applicant breached any of the 27 conditions to which his visa was subject, he was liable to be returned immediately to immigration detention. The applicant noted that the first condition to which his visa was subject was condition 8303, which was as follows:

The holder must not become involved in activities disruptive to, or violence threatening harm to, the Australian community or a group within the Australian community.

1. The applicant submitted that "activities disruptive to ... the Australian community" was inherently ambiguous and could capture something as benign as holding up a sign saying "Please end all wars".
2. The applicant also particularly noted condition 8514, which was as follows:

During the visa period of the visa, there must be no material change in the circumstances on the basis of which it was granted.

1. The applicant noted that that condition was very difficult for the applicant to comply with, because the respondents had not told him what the circumstances were on the basis of which his visa was granted, even though the applicant had asked for the reasons for the grant of the visa.
2. The applicant noted a number of conditions that required the applicant to attend a particular place to facilitate his removal from Australia and another that required him to attend for an interview as directed. The applicant said all of these conditions restricted his physical liberty.
3. The applicant also noted condition 8554, which prohibited him from a acquiring a weapon. The applicant submitted that would include a kitchen knife. Arguably, it would also include scissors, which he needs to work as a barber. However, the applicant noted, condition 8622 prohibited him from doing any work that involved more than incidental contact with a minor. As a barber, he would not be permitted to cut the hair of children, so would be unlikely, in the applicant's submission, to be able to find any employment as a barber.
4. The applicant also noted condition 8612, which stated that:

If the holder has been convicted of an offence that involves a minor or any other vulnerable person, the holder:

(a) must, within 5 working days of the grant, notify Immigration of the full name, and date of birth, of each person who ordinarily resides with the holder at the holder's residential address; and

(b) must notify immigration of any change in the persons who ordinarily reside with the holder at the holder's residential address within 2 working days after the change occurs.

1. However, the applicant submitted that he was obliged by Immigration to leave his accommodation (because it was 199 metres from a child care centre) and the only accommodation he could find was with people he did not know, and he did not know their dates of birth, and they might not know them either (for example, if they were born in a village where such details were not reliably recorded).
2. The applicant also noted condition 8623, which states that:

If the holder has been convicted of an offence involving violence or sexual assault, the holder must not contact, or attempt to contact, the victim of the offence or a member of the victim's family.

1. The effect of that condition is that the applicant can never contact his daughter, at least while the condition lasts. The applicant submitted that the inhumanity of that condition is incredible. It is certainly extreme. Absent that condition, if the applicant brought an application in this court's family jurisdiction to see his daughter, he might well be permitted to see her, initially under professional supervision, and, depending on how the visits went, then possibly for some hours or days per fortnight. That permission would not be for the applicant's benefit, but for the daughter's benefit, it being generally perceived that it is fundamental to a child's proper emotional and psychological development to have at least some contact with both of their parents, except where the risks to the child outweigh the benefits. An isolated instance of family violence of the sort the applicant conceded he committed would not ordinarily prevent any contact at all between a child and the parent who perpetrated the violence.
2. In any event, the applicant submitted that, in this case, there was a triable issue of law, being the ambit of the writ of habeas corpus (as per Ugur) and there was a triable issue of fact consisting of whether the ambit had been breached in this particular case.
3. The applicant also submitted that the conditions attached to the applicant's visa were invalid because they were a form of executive punishment, which is impermissible.
4. In my view, the applicant ought to be given leave to amend, along the lines of the proposed amendment set out in footnote 1 to his written submissions for the following reasons. The situation changed dramatically between the filing of the amended habeas corpus application on 8 October 2024, and the filing of the summary dismissal application on 28 January 2025. In the meantime, the Minister had given the applicant a four month bridging visa and he was no longer in detention. The situation changed dramatically again between the filing of the summary dismissal application on 28 January 2025 and the hearing of the summary dismissal application on 24 March 2025 because the Minister gave the applicant an indefinite bridging visa on 19 February 2025, which was subject to 27 conditions, some of which are described above.
5. The applicant ought to have formally applied for leave to amend some time after he was granted the Bridging Visa R. It was not appropriate for the applicant to say in his written submissions on the summary dismissal application that he sought leave to amend, and then to particularise that application in a footnote.
6. Having said that, this matter has a very complicated procedural history, not least because the respondents conceded that the applicant should not be physically detained in the middle of a habeas corpus trial and gave him a bridging visa but did not concede that a writ of habeas corpus should issue. Moreover, the case has had a number of applications which have possibly distracted the applicant's legal team from the need to obtain leave to amend.
7. The respondents were on notice about the applicant's wish to amend, and did not seek any detail about the proposed amendment and did not seek further time to consider the matter.
8. Most importantly, the proposed amendment has a reasonable prospect of success. I accept that "the ambit of the writ of habeas corpus is a triable issue". I accept that it is reasonably arguable that the writ of habeas corpus is not confined to cases of physical detention, but extends to restrictions on liberty that are not faced by members of the public generally. I accept that it is reasonably arguable that at least some of the particular conditions imposed on the applicant's visa constitute restrictions on the applicant's liberty sufficient to warrant the issuance of a writ of habeas corpus and the injunctions that he seeks.
9. Consequently, I will grant leave to amend.

1. In my view, this is not an appropriate case for summary dismissal of Grounds 1 and 2. Although the applicant is patently no longer in physical detention, the authorities mentioned above make it abundantly clear that physical detention is not essential for the writ of habeas corpus to be available. As the respondents conceded, the "ambit of the writ of habeas corpus is a triable issue". It is arguable that restrictions on any liberty, as opposed to restrictions on freedom of movement, that are not faced by members of the public generally, may be sufficient to found a writ of habeas corpus. Whether the particular conditions imposed on the applicant's visa are sufficient to justify a writ of habeas corpus are triable questions of fact or law. Arguably, they are serious restrictions of the applicant's liberties that are not faced by members of the public generally. It seems to me that the applicant has a reasonable prospect of successfully prosecuting his substantive claim. However, the reference to s.189(1) of the Act in Ground 1 is misplaced and should be removed. The applicant may wish to make other amendments as well.

1. The applicant urged the court to issue the writ of habeas corpus right away, with the effect that some or all of the conditions to which the applicant's visa is subject would fall away. I do not consider that to be an appropriate course. The applicant needs to plead his case properly, with full particulars, and the respondents need to be given a fair opportunity to respond.

I certify that the preceding seventy-six (76) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Riley.