The applicant relies on an affidavit of Jazmine Elmolla, a senior lawyer employed by the applicant's legal representatives, sworn 25 October 2024.
The respondent relies on an affidavit of Keith Maxwell Sypott, an AGS lawyer within the meaning of s 55I of the Judiciary Act 1901 (Cth), affirmed 30 October 2024 (Sypott affidavit).
The applicant is a citizen of Malaysia who arrived in Australia on 7 August 2012 as the holder of a Class UD subclass 976 visitor visa. The visitor visa was valid for a period of three months, after which it appears that the applicant remained in Australia as an unlawful non-citizen until he made an application for a protection visa on 18 July 2019, at which time he was granted a Class WC subclass 030 Bridging C visa (BVC).
On 5 August 2019, a delegate of the Minister refused to grant a protection visa to the applicant, following which he applied for review of that decision by the Tribunal.
On 2 November 2022, the applicant was convicted in the County Court of Victoria on one count of trafficking a drug of dependence in a large commercial quantity, and was sentenced to imprisonment for a term of four years and six months.
On 29 March 2023, the applicant's BVC was cancelled by a delegate of the Minister under s 501(3A) of the Migration Act. The applicant made representations seeking the revocation of the cancellation decision under s 501CA of the Migration Act.
On 2 June 2024, the applicant was taken into immigration detention upon his release from criminal custody. A Departmental Status Resolution Officer, after having interviewed the applicant, formed a reasonable suspicion for the purposes of s 189(1) of the Migration Act that the applicant is an unlawful non-citizen who is in the migration zone.
On 4 September 2024, a delegate of the Minister decided not to revoke the cancellation decision under s 501CA(4) of the Migration Act. The applicant has applied for merits review of the non-revocation decision. That application is currently listed for hearing by the Administrative Review Tribunal (ART) on 18 and 19 November 2024. The ART is required by s 500(6L) of the Migration Act to make a decision on the review by 28 November 2024, failing which it will be taken to have affirmed the decision under review.
On 11 September 2024, on the review of the decision to refuse to grant the applicant a protection visa, the Tribunal found that the applicant satisfies the criteria under s 36(2)(aa) of the Migration Act, and remitted the matter for reconsideration by the Minister. The Tribunal found that there was a real risk that the applicant might suffer significant harm as a necessary and foreseeable consequence of him being removed from Australia to Malaysia.
On 14 October 2024, Ms Elmolla sent an email to the Department of Home Affairs, requesting that the applicant be immediately released from detention. Ms Elmolla submitted to the Department that the applicant's ongoing detention was no longer authorised under s 189 of the Migration Act "as the purpose for his detention had now expired" because of the protection finding made by the Tribunal, as a result of which the applicant could not be removed to Malaysia. Ms Elmolla stated that "regardless of whether [the applicant] is granted a [protection visa] he will be released from detention at the conclusion of that process, either with a [protection visa] upon grant or in accordance with the High Court's ruling in NZYQ".
On 15 October 2024, a Departmental officer informed Ms Elmolla by email that the applicant's protection visa application remained "under active processing", and that the Department had sent a request for information under s 56 of the Migration Act and would "await the information requested".
Further, on 16 October 2024, the Department's legal representatives advised Ms Elmolla by email that they did not consider the applicant was presently "NZYQ affected", in circumstances where his protection visa application was not yet finally determined and the duty to remove him from Australia was not yet engaged. Accordingly, the Commonwealth's representatives asserted that the applicant's detention "continues to be authorised".
On 24 October 2024, Ms Elmolla sent an email to the Department and its legal representatives, advising that she had instructions to file an application for a writ of habeas corpus and inviting the Minister to release the applicant from immigration detention by 9.00 am on 25 October 2024.
In the absence of any substantive response from the Department or its representatives, the applicant commenced this proceeding seeking habeas corpus and interlocutory relief. The interlocutory orders sought by the applicant are in the following terms:
Pending further order, and subject to the conditions in order 2, the Respondent including by his servants and agents be restrained from continuing to detain the Applicant in immigration detention.
Until further order, the Applicant:
a. advise the Respondent of any change in address where he will reside;
b. be physically at the advised address between 9pm and 5am each day;
c. report twice weekly to the nearest practicable police station.
Pursuant to s 37AI of the Federal Court of Australia Act 1976, there be an interim suppression order over the affidavit of Jazmine Elmolla sworn 25 October 2024 preventing the disclosure of that affidavit to anyone other than the lawyers for and officers of the Respondent directly involved in the running of the defence to this proceeding.
If the Respondent opposes the interlocutory orders sought - the Respondent pay the Applicant's costs.
As mentioned above, in the light of the pending proceedings before the High Court, it is common ground that the final hearing of the habeas corpus application should be deferred. However, the applicant presses his application for interlocutory relief.
Although not addressed in the body of the Sypott affidavit, the TRIM records at Annexure KMS-5 include entries which indicate that:
on 25 October 2024, the applicant's protection visa application was undergoing assessment under s 36(1C) of the Migration Act; and
on 28 October 2024, the protection visa application was referred to the Visa Applicant Character Cancellation Unit (VACCU) and a notice of intention to consider refusal (NOICR) was issued, with a response due by 22 November 2024.
[2]
The parties' submissions
The applicant submits that the Court has power to order the release of a person who is in immigration detention on an interlocutory basis, notwithstanding the terms of s 196 of the Migration Act. He relies on the decision in BHL19 v Commonwealth of Australia [2021] FCA 462, in which Wigney J concluded that s 196(3) and (6) of the Migration Act did not operate to prevent the Court from ordering interlocutory release in proceedings in which the applicant challenges the lawfulness of his or her detention, and does not seek judicial review of a decision to cancel his or her visa under s 501 of the Migration Act. The applicant submits that the power to order interlocutory release has not been removed by s 196(4) to (7), because those provisions operate only in respect of a person who is detained as a result of a visa cancellation decision under s 501 in circumstances where the applicant has brought proceedings for judicial review of that decision (see BHL19 at [28]), and therefore do not apply to a case in which it is alleged that detention is unlawful independently of any challenge to the legality of the visa cancellation.
The applicant submits that there is a prima face case or a serious issue to be tried as to whether his current detention is unlawful, and that the balance of convenience favours the grant of interlocutory orders requiring his release from detention. In that regard, the applicant submits that he has offered to abide by conditions which require him to notify the Commonwealth of his address and to abide by a curfew and regular reporting, and that his release on such conditions would cause no relevant prejudice to the Commonwealth. Particularly in circumstances where it is not practicable to expedite the final hearing of the application for habeas corpus, the applicant submits that it is appropriate for the Court to order his release from immigration detention until the proceeding is heard and determined.
The Commonwealth submits that there is no power to make the interlocutory orders sought by the applicant to restrain his continued detention under the Migration Act. While accepting that the Court may order the release of a person if it finally determines that their detention is unlawful, the Commonwealth argues that s 196 of the Migration Act displaces any power to order interlocutory release that would otherwise be conferred by s 23 of the Federal Court of Australia Act 1976 (Cth) (FCA Act). Thus, s 196(1) imposes a continuing obligation to detain an unlawful non-citizen until the occurrence of one of four specified events (see Commonwealth v AJL20 (2021) 273 CLR 43 at [34] (Kiefel CJ, Gageler, Keane and Steward JJ)); s 196(3) prevents the release of an unlawful non-citizen by a court unless one of those four events has occurred (see AJL20 at [49]); s 196(4) specifically provides that, where a person is detained as a result of the cancellation of his or her visa under s 501 of the Migration Act (among other provisions), 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" (emphasis added); and s 196(6) provides that the section has effect despite any other law.
In the present case, the Commonwealth contends that the applicant was detained as a result of the cancellation of his BVC under s 501(3A) of the Migration Act, so that s 196(4) precludes the Court making interlocutory orders for the applicant's release from detention. The Commonwealth submits that such a conclusion is compelled by the Full Court's decision in Ongel v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 239 at [2] (Hely J, with whom Spender and Bennett JJ agreed), which has been followed in subsequent decisions including Erden v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1395 at [16], [21]-[22] (Thomas J); Durani v Minister for Immigration and Border Protection (2013) 223 FCR 391 at [23], [38]-[41] (McKerracher J); Applicant in WAD 230/2014 v Minister for Immigration and Border Protection [2014] FCA 1351 at [12] (Gilmour J); CZCV v Commonwealth of Australia [2020] FCA 1864 at [17]-[18] (Rangiah J); and AFF20 v Minister for Home Affairs [2020] FCA 546 at [12], [18]-[29] (Griffiths J).
In particular, the Commonwealth submitted that s 196(4) is not limited in its the application to proceedings for judicial review of a visa cancellation decision, and also covers proceedings in which an applicant challenges the lawfulness of his or her detention: see Erden at [16], [21]-[22] (Thomas J); CZCV at [7], [18] (Rangiah J); see also Kapeli v Secretary, Department of Home Affairs [2024] FCA 1246 at [214]-[215], [216] (O'Bryan J). To the extent that a contrary view was expressed by Wigney J in BHL19, the Commonwealth submitted that his Honour was plainly wrong. The Commonwealth submitted that any such limit on the application of s 196(4) was not consistent with the legislative history of that provision.
The Commonwealth accepts for the purposes of this application that the applicant's substantive case is not bound to fail (which I take to mean that it is conceded for present purposes that there is a serious issue to be tried as to the lawfulness of his detention), but submits that the balance of convenience is against the applicant's release from detention, which would "disturb the status quo" under which there is a statutory duty imposed on officers to detain the applicant based on a reasonable suspicion that he is an unlawful non-citizen: see, e.g., Haney v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1555 at [17] (Selway J); BHL19 at [83]-[85] (Wigney J).
Following the hearing of the interlocutory application, the parties were given an opportunity to file further written submissions addressing s 196(5) of the Migration Act, which relevantly provides that s 196(4) applies "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 "whether or not a visa decision relating to the person detained is, or may be, unlawful".
The applicant maintained his submission that the mischief at which s 196(4) is directed concerns the grant of interlocutory relief in the context of a proceeding for judicial review of a cancellation decision. Alternatively, the applicant argued that s 196(4), when construed in the light of s 196(5), should be confined to proceedings that challenge the lawfulness of detention "pursuant to statute" as opposed to "substantive applications that challenge the constitutional legality of detention". Further, the applicant submitted that s 196(5)(a) is not engaged and has no work to do in the present case, because the applicant's detention is not for the purposes of his removal from Australia.
The Commonwealth submitted that s 196(5) lends strong contextual support to the construction of s 196(4) as precluding the Court from granting "bail" to a person who has been detained as a result of visa cancellation under s 501, regardless of the nature of the person's substantive challenge either to the lawfulness of his or her detention or to his or her status as an unlawful non-citizen. Accordingly, apart from the four events set out in s 196(1), such a person cannot be released from detention unless a court has finally determined either that the detention is unlawful or that the person is not an unlawful non-citizen. The Commonwealth submitted that, "[t]o avoid doubt", s 196(5) confirms the application of the general rule in s 196(4) to two categories of proceedings "based on the jurisprudential landscape at the time of [its] enactment" (including the prevailing position at that time under the decision in Minister for Immigration and Multicultural and Indigenous Affairs v Al Masri (2003) 126 FCR 54).
The Commonwealth also refuted the applicant's postulated distinction between proceedings alleging unlawfulness in excess of the statutory power conferred by the Migration Act and proceedings challenging the constitutional legality of detention. The Commonwealth submitted that s 196(4) and (5) do not draw any such distinction. Those provisions address the power of a court to grant interlocutory relief in circumstances where a person might be unlawfully detained, but (like s 196(3)) they do not purport to authorise unlawful detention. Nothing in s 196 is intended to prevent a court from ordering the release of a person whose detention is unlawful, but a court is precluded from making such an order unless it has made a final determination to that effect. In so far as a substantive proceeding involves a challenge to the constitutional legality of detention, the Commonwealth submits that it is well established in the context of constitutional challenges to legislation that a court generally approaches any question of interlocutory relief on the basis that the impugned law is valid unless and until it is shown to be invalid: Castlemaine Tooheys Ltd v South Australia (1986) 161 CLR 148 at 155-156 (Mason CJ); Australian Capital Television Pty Ltd v Commonwealth (1992) 104 ALR 389 at 393 (Mason CJ).
[3]
Power to order release from detention on an interlocutory basis
It is common ground between the parties that, apart from any limitation validly imposed by s 196 of the Migration Act, this Court has power to make interlocutory orders requiring that a person in immigration detention be released pending the hearing and determination of a proceeding in which the person challenges the legality of his or her detention. The source of the power to make such orders is generally attributed to s 23 of the FCA Act, which confers power in matters within the Court's jurisdiction "to make orders of such kinds, including interlocutory orders, and to issue, or direct the issue of, writs of such kinds, as the Court thinks appropriate".
In Al-Kateb v Godwin (2004) 219 CLR 562 at [26], Gleeson CJ noted that it was "not uncommon" for a bail order to be made as an interlocutory step in habeas corpus proceedings: see also R v Secretary of State for the Home Department; Ex parte Turkoglu [1988] QB 398 at 399 (Sir John Donaldson MR, with whom Croom-Johnson and Bingham LJJ agreed). In fact, before the appeal in Al-Kateb was removed from this Court into the High Court, Mansfield J had made interlocutory orders (by consent) for the applicant's release from detention pending the hearing of the appeal, subject to conditions designed to ensure his availability for detention and removal if and when it became reasonably practicable: see Al-Kateb at [23], [26] (Gleeson CJ), [107], [141] (Gummow J), [280] (Callinan J). This was consistent with previous authority in this Court confirming the power to make an interlocutory order for the release from custody of a person who had brought judicial review proceedings to challenge the exercise of statutory powers to detain the person pending his or her deportation: Minister for Immigration, Local Government and Ethnic Affairs v Msilanga (1992) 34 FCR 169 at 179-181 (Beaumont J, with whom Black CJ agreed), 186-189 (Burchett J); see also Lim at 13 (Mason CJ).
In Minister for Immigration and Multicultural and Indigenous Affairs v VFAD (2002) 125 FCR 249 at [99]-[103], Black CJ, Sundberg and Weinberg JJ confirmed that s 23 of the FCA Act conferred power to make interlocutory orders for the release on a temporary basis of persons in immigration detention, pending the hearing and determination of a proceeding in which the respondent claimed a declaration that he was not an unlawful non-citizen (based on an allegation that he had in fact been granted a protection visa). The Court also held (at [104]-[120]) that s 196(3) of the Migration Act, in preventing the release by a court of an unlawful non-citizen, did not abrogate or deny the Court's general powers to grant interlocutory relief to protect the rights of a person in detention who claimed not to be an unlawful non-citizen, and to enable the effective exercise of its jurisdiction to hear and determine that claim.
In the wake of the decision in VFAD, s 196 of the Migration Act was amended by the Migration Amendment (Duration of Detention) Act 2003 (Cth) (2003 Amendment Act), which inserted new subss (4) to (7). As currently in force, s 196 of the Migration Act provides as follows:
196 Duration of detention
(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
(aa) an officer begins to deal with the non‑citizen under subsection 198AD(3); or
(b) he or she is deported under section 200; 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.
(4A) Subject to paragraphs (1)(a), (b) and (c), if the person is detained pending his or her deportation under section 200, the detention is to continue unless a court finally determines that the detention is unlawful.
(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.
(7) In this section:
visa decision means a decision relating to a visa (including a decision not to grant the visa, to cancel the visa or not to reinstate the visa).
Section 196(4) of the Migration Act is explicitly directed at the power of a court to order the release on an interlocutory basis of certain classes of persons who have been detained under s 189, namely, persons who are detained as a result of the cancellation of a visa under the character provisions. The subsection purports to deny the power to order the release of such persons unless the court finally determines that the detention is unlawful, or that the person detained is not an unlawful non-citizen.
The legislative history and extrinsic material in relation to the 2003 Amendment Act, and the mischief at which those amendments were directed, were discussed by Besanko J in Burgess v Commonwealth (2020) 276 FCR 548 at [108]-[114]. As is there recounted (see in particular at [109]), the Bill as originally introduced contained a wider provision to prevent the interlocutory release of all persons detained under s 189 of the Migration Act. As a result of amendments made to the Bill in the course of its passage through the Parliament, cl 196(4) and (4A) were ultimately limited to persons who were detained as a result of the cancellation of their visa on character grounds under s 501 or persons who were detained pending their deportation under s 200 of the Migration Act. Given these significant changes to the scope of cl 196(4) between the introduction and passage of the Bill, it is more relevant to refer to the Supplementary Explanatory Memorandum (Supplementary EM), which addresses the amendments to the Bill that were moved on behalf of the Government.
The Supplementary EM stated that the purpose of the amendments was -
to put beyond doubt that an unlawful non-citizen who is in immigration in certain limited circumstances must be kept in detention until a court finally determines that:
the detention is unlawful; or
he or she is not an unlawful non-citizen.
Those "limited circumstances" were identified as where the person's visa was cancelled under s 501, and where the person was awaiting their deportation from Australia under s 200 of the Migration Act. The Supplementary EM continued:
Despite the current provisions relating to immigration detention, there has been a series of cases in which the Federal Court has ordered the interlocutory release of immigration detainees, prior to the resolution of their substantive court proceedings. In many of these instances, the person had been detained because they had had their visa cancelled on character grounds. Specifically, the records of such persons indicate a history of prior criminal convictions sufficiently serious to cause them to be considered as persons of character concern. The Government's major concern is that the release of persons of character concern does not occur, where that release may place members of the Australian community at risk.
Therefore, these amendments to the Bill are designed to ensure that persons of character concern who are in immigration detention are not released into the Australian community prior to the resolution of their substantive court proceedings.
(Emphasis added.)
These concerns were echoed in the Minister's second reading speech, noting however that this preceded the subsequent amendments by which cl 196(4) was limited to "persons of character concern". The Minister relevantly said:
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.
Such orders mean that a person must be released into the community until such time as the court finally determines their application. The court's final determination of the case can take anywhere between several weeks and several months. Where the person is subsequently unsuccessful, that person must be relocated, redetained and arrangements then made for their removal from Australia. This is a time consuming and costly process and can further delay removal from Australia.
I understand that there have now been some 20 persons released from immigration detention on the basis of interlocutory orders. In the case of more than half of these persons removal action had been commenced, as they are of significant character concern, and the government believes their presence is a serious risk to the Australian community.
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 appellant placed some weight on the Minister's second reading speech in support of his contention that s 196(4) is directed at interlocutory orders for the release of a person pending the determination of a "judicial review application" (e.g. in relation to a visa cancellation decision). However, the language used in the second reading speech in this respect cannot be read too literally, given the terms of the Bill as introduced and its accompanying Explanatory Memorandum. First, the terms of cl 196(4) when it was introduced were of general application to all persons in immigration detention, and made no reference to any decision regarding the cancellation of the person's visa under s 501. Although cl 196(5)(b) in its original form provided that subsection (4) applied (inter alia) "whether or not a visa decision relating to the person detained is, or may be, unlawful", that paragraph did not operate to constrain the scope of s 196(4) to such circumstances. Secondly, the language used in cl 196(4) as introduced expressly encompassed a final determination either that the detention is unlawful or that the person detained is not an unlawful non-citizen. Accordingly, the first Explanatory Memorandum described the purpose of cl 196(4) as "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" (emphasis added). It is therefore difficult to discern in cl 196(4) any intention that its operation or application should be limited to interlocutory orders made in proceedings for the judicial review of a decision relating to a visa, as opposed to proceedings seeking habeas corpus or declaratory relief in relation to the lawfulness of a person's detention.
[4]
Serious issue to be tried
In the light of the issues that have been raised and are under consideration by the High Court in the proceedings referred to paragraph 5 above, the Commonwealth accepts for the purposes of this interlocutory application that the applicant's substantive claim is not bound to fail. Accordingly, in the circumstances, it must be accepted that the applicant has raised a serious question to be tried as to the lawfulness of his current detention. It is unnecessary for present purposes, and in advance of the decision by the High Court, to attempt any assessment of the strength of the applicant's case.
[5]
Balance of convenience
Given my conclusion on the question of power, it is strictly unnecessary for me to determine whether or not the balance of convenience would favour the making of orders for the applicant's release from detention on an interlocutory basis, or the conditions of any such order.
Nevertheless, on the material before the Court, I am not persuaded that the balance of convenience favours the grant of interlocutory relief.
The applicant submitted that the balance of convenience should be "uncontentious" in circumstances where the relief sought concerns his liberty, and that any relevant prejudice that might be suffered by the Commonwealth was addressed by the "bail" conditions and the ability for the orders to be revoked if warranted by subsequent circumstances. The applicant submitted that the interlocutory orders would not direct the Commonwealth to act contrary to the law, given that he argues that his continued detention is unlawful. Particularly in circumstances where the final hearing of the substantive application cannot be expedited, the applicant submits that the Court should order his release in the interim.
However, there is inadequate material before the Court to make any findings on questions that may be central to any decision on whether or not the applicant should be released from detention on an interlocutory basis, and if so, on what conditions he should be released. On the applicant's part, the submissions are based on an abstract or high-level contention about his right to liberty. The Commonwealth, on the other hand, addressed the balance of convenience solely by reference to the "status quo" under which there are statutory duties to detain the applicant as an unlawful non-citizen. One would expect that, before the Court would make any interlocutory order for the release of a person from immigration detention, there would ordinarily be at least some material directed to matters such as the impacts on the applicant of ongoing detention and any potential risks arising from his release until the substantive application can be determined. Moreover, to the extent that any order is to be made subject to conditions, the material before the Court should address their appropriateness by reference to the circumstances of the particular case.
Further, it does not appear that the applicant presses any claim for mandamus in the present case, and he does not contend that there has been unreasonable delay in determining his protection visa application following the remittal by the Tribunal on 11 September 2024. There is some evidence that the visa application is under active consideration and is being processed, as appears from the recent referral of the application to VACCU and the issue of a NOICR to the applicant (see paragraph 24(b) above). The Tribunal is soon expected to make a decision on the review of the decision not to revoke the cancellation of the applicant's BVC. Although it is not practicable to expedite the final hearing of the applicant's challenge to the lawfulness of his detention while awaiting the outcome of the proceedings that are currently before the High Court, judgment has been reserved in those proceedings and this matter can be listed for a prompt hearing after that judgment has been delivered.
Finally, while not determinative, it is relevant in considering the balance of convenience to have regard to the statutory context including the duties under the Migration Act to detain unlawful non-citizens, and ultimately to remove unlawful non-citizens from Australia if and when the duty to do so arises: see Haney at [17] (Selway J); BHL19 at [84]-[85] (Wigney J). This reflects considerations identified by Mortimer J (as her Honour then was) in CPK20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 825 at [80], in the context of an application for an interlocutory injunction to restrain the removal of an unlawful non-citizen from Australia, that there must be a reasonable justification for the Court to grant interlocutory relief that would "interrupt and override the course envisaged, and required, by the legislative scheme in the Migration Act". On the other hand, the situation addressed by Mortimer J in CPK20 was one in which the interlocutory relief sought had no substantive connection with the controversy between the parties in the proceeding or the final relief sought - that is, there was no claim putting in issue the power to remove the applicant in that case from Australia. The position is clearly different in circumstances where the substantive issue raised by the proceeding challenges the underlying basis of the course that the legislative scheme envisages and requires. Nevertheless, it has long been recognised that an application for interlocutory orders to release a person from immigration detention must take into account the issues raised by the particular statutory context in which such an application is determined: see Msilanga at 170 (Black CJ), 189 (Burchett J).
[6]
Conclusion
For the reasons set out above, I dismiss the application for interlocutory relief as set out in paragraphs 1 and 2 of the originating application filed on 25 October 2024. The costs of that application should be reserved.
I certify that the preceding seventy-eight (78) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Horan.
Parties
Applicant/Plaintiff:
IXW24
Respondent/Defendant:
Commonwealth of Australia
Legislation Cited (4)
Migration Amendment (Duration of Detention) Act 2003(Cth)
The applicant's claim for interlocutory relief in paragraphs 1 and 2 of the originating application dated 25 October 2024 is dismissed.
Costs be reserved.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
HORAN J:
The applicant is currently detained by officers of the Commonwealth at the Melbourne Immigration Detention Centre in Broadmeadows, Victoria. By an originating application filed on 25 October 2024, he applies for a writ of habeas corpus. The applicant also applies for interlocutory orders for his release from detention subject to specified conditions pending the determination of his claim for habeas corpus. This is characterised in the applicant's submissions as being akin to an application for the grant of "bail". These reasons deal only with the applicant's claim for interlocutory relief.
The applicant's substantive claim is that his detention is unlawful on the basis that it is not for a legitimate non-punitive purpose under the principle applied in Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs (1992) 176 CLR 1, as developed and applied in subsequent cases including NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs [2003] HCA 37; 97 ALJR 1005.
While the applicant is still awaiting a decision by the Minister for Immigration and Multicultural Affairs on his application for a protection visa, the Administrative Appeals Tribunal has found that the applicant satisfies the criterion in s 36(2)(aa) of the Migration Act 1958 (Cth) on the basis that there is a real risk that he will suffer significant harm as a necessary and foreseeable consequence of his removal to Malaysia, his country of citizenship. The Tribunal remitted the matter to the Minister for reconsideration with a direction to that effect. Accordingly, once his protection visa application is finally determined, there will be a "protection finding" for the applicant with respect to Malaysia within the meaning of s 197C(3) of the Migration Act, so as to deny any duty or power to remove him involuntarily to Malaysia even if his protection visa application is ultimately refused by the Minister.
In such circumstances, the substantive claim to be advanced by the applicant regarding the lawfulness of his current detention is that, in circumstances where he cannot be removed to his country of origin and there is no other country to which he can be removed if his protection visa is refused, his detention is not for a legitimate non-punitive purpose. Notwithstanding that his protection visa application has not yet been finally determined, the applicant argues that he must inevitably be released from detention either upon the grant of a protection visa or, if his application for such a visa is refused, by reason of the decision in NZYQ. This is said to result in the characterisation of his current and ongoing detention as punitive and therefore unconstitutional.
The applicant's substantive claim for habeas corpus raises issues that were argued before the High Court in two pending proceedings that were heard on 14 November 2024: CZA19 v Commonwealth of Australia & Anor (M66/2024) and DBD24 v Minister for Immigration, Citizenship and Multicultural Affairs & Anor (P29/2024). The High Court has reserved its decision in those matters. The parties agree that the final hearing of the application for habeas corpus in the present case should be deferred until after the outcome of the proceedings in the High Court.
The application presently before the Court is for interlocutory orders to restrain the Commonwealth from continuing to detain the applicant pending further order, subject to specified conditions in relation to the applicant's residence and curfew and reporting obligations. The conditions would require the applicant:
to advise the Commonwealth of any change in the address where he will reside,
to be physically at the advised address between 9.00 pm and 5.00 am each day; and
to report twice weekly to the nearest practicable police station.
The Commonwealth opposes the interlocutory application. In summary, the Commonwealth submits that s 196 of the Migration Act prevents the Court from ordering the release of an unlawful non-citizen from immigration detention on an interlocutory basis, at least where the person is detained as the result of the cancellation of his or her visa on character grounds. Further or alternatively, the Commonwealth submits that the balance of convenience is against the making of orders requiring the applicant's release from detention.
For the following reasons, the interlocutory application is dismissed. Section 196(4) of the Migration Act precludes the Court from making an order for the applicant's release from immigration detention unless and until it has finally determined that the detention is unlawful or that the applicant is not an unlawful non-citizen. Accordingly, the Court does not have power to make the interlocutory order sought by the applicant. Further and in any event, on the material before the Court, the balance of convenience does not favour the applicant's release from detention on the nominated conditions pending the hearing and determination of the claim for habeas corpus.
In Ongel at [2], Hely J (with whom Spender and Bennett JJ agreed) relied on s 196(4) in dismissing an application by the appellant for an order that he be released from detention pending the hearing of his appeal, stating that "[i]t seems to me that the consequence of s 196(4) is that this Court has no power to grant to the appellant the relief which he seeks". The appellant in Ongel was in immigration detention as a consequence of the cancellation of his visa under s 501(2) of the Migration Act.
A similar approach has been adopted in a succession of decisions of single Justices of this Court.
In Durani, the applicant sought judicial review of a decision by the Minister to cancel his visa on character grounds under s 501A(2) of the Migration Act, and applied for an order releasing him from immigration detention pending the determination of the judicial review proceedings. The Court concluded that there was no power to make the interlocutory orders sought by the applicant. Justice McKerracher considered that decisions such as VFAD were "no longer good authority with respect to the granting of interlocutory relief concerning persons held in immigration detention", having been decided under a different statutory regime prior to the amendments that introduced s 196(4) and (4A): at [41]-[42]. His Honour relevantly stated (at [38]):
It is clear that s 196(3) and (4) of the Act prevent the release of Dr Durani. It is not sufficient that there are broad powers available under ss 22 and 23 of the FCA. Those powers must be exercised consistently with s 196(3) and (4) of the Act. Those subsections limit and implicitly revoke the Court's power to make orders that touch on Mr Durani's detention. In particular, I cannot make orders that would have the effect of requiring Dr Durani's release from detention. I accept the submission for the Minister that the scope of the orders that may be made under ss 22 and 23 of the FCA are required to take into account the clear language used in ss 189 and 196 of the Act concerning the mandatory detention of a person who has the status of an unlawful non-citizen or is reasonably suspected of being an unlawful non-citizen.
In WAD 230/2014 , the applicant applied for an interlocutory injunction to restrain the Minister from continuing to detain him in immigration detention until the determination of his application for an extension of time to seek judicial review of a decision to cancel his visa under s 501 of the Migration Act. Justice Gilmour noted (at [15]) that decisions such as VFAD and Preston v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 420 were "no longer good authority with respect to the granting of interlocutory relief concerning persons held in immigration detention", both because they were decided prior to the High Court's decisions in Al-Kateb and Re Woolley; Ex parte Applicants M276/2003 (2004) 225 CLR 1 and because of the subsequent amendments made by the 2003 Amendment Act to introduce s 196(4), which represented "a further restriction upon the granting of relief by an order which would effect the applicant's release" (at [16]).
The same issue arose before Griffiths J in AFF20, where an interlocutory application by the applicant for an order restraining the Minister from continuing to detain him in immigration detention pending the hearing of his substantive judicial review application was summarily dismissed. The applicant had been detained following the cancellation of his visa under s 501(3) of the Migration Act. Placing particular emphasis on s 196(4), and referring to the decisions in Ongel, Durani and WAD 230/2014, Griffiths J concluded that this Court had no power to make an order for the applicant's interlocutory release from immigration detention. The applicant unsuccessfully sought to rely on s 476A(2) of the Migration Act as conferring on the Federal Court the same jurisdiction as that of the High Court under s 75(v) of the Constitution, referring to Plaintiff M168/10 v Commonwealth [2011] HCA 25; 85 ALJR 790 in which Crennan J accepted (and the parties did not dispute) that the High Court had power to make an interlocutory order effecting the release of a person from detention in a proceeding brought pursuant to s 75 of the Constitution. However, Griffiths J did not consider that the effect of s 196(4) had been impliedly repealed by s 476A of the Migration Act, nor that the decisions in Ongel, Durani and WAD 230/2014 could be distinguished on that basis. After observing (at [17]) that the applicant's argument failed to give proper effect to the express terms of s 196(6), which provides that the section "has effect despite any other law", Griffiths J said (at [18]-[19]):
It is incontrovertible that, consistently with notions of parliamentary sovereignty, the Commonwealth Parliament could, if it so wished, amend or repeal s 196(4), but the insertion of s 476A cannot properly be regarded as achieving either of those outcomes. The Migration Act needs to be read as a whole. When it is read as a whole, there is a harmonious operation between the relevant provisions of s 196 and the relevant provisions of s 476A. As I have already indicated, s 196 deals in its terms with the exercise of powers by a court. Section 476A deals with a different but related topic, namely the conferral of jurisdiction. The Court has the jurisdiction in relation to a migration decision as defined in Div 2 of Pt 8 of the Migration Act. That jurisdiction is, in relation to a "migration decision" as defined, the same as the High Court's jurisdiction under s 75(v) of the Constitution.
That is not to say, however, that s 476A(2) means that all the powers that are available to the High Court in the exercise of its original jurisdiction are also available to this Court. The Court must give effect to the clear terms of ss 196(4) and 196(6), both of which relate to the exercise of powers when the Court exercises its migration jurisdiction. Whatever the position might be as far as the High Court is concerned, and the effect of s 476A on that jurisdiction, is a matter which I need not determine today, the focus being rather on the powers of this Court in exercising its migration jurisdiction.
In CZCV, Rangiah J dismissed an urgent interlocutory application brought by the applicant for orders compelling his release from immigration detention. The applicant was detained following the mandatory cancellation of his visa pursuant to s 501(3A) of the Migration Act as a result of his conviction for sexual offences against a minor. The applicant had brought proceedings seeking judicial review of a decision by the Tribunal to affirm a decision not to revoke the cancellation decision. However, the applicant subsequently discontinued those proceedings, and commenced fresh proceedings "contending that his detention has been unlawful since 28 August 2019, and seeking the issue of a writ of habeas corpus and damages for false imprisonment" (at [7]), relying on the decision of Bromberg J in AJL20 v Commonwealth of Australia (2020) 279 FCR 549 (which was subsequently to be overturned by the High Court). Referring to the decisions in Ongel, Durani, WAD 230/214 and AFF20, Rangiah J concluded (at [18]) that ss 196(1), (3) and (4) applied in the circumstances of the case and that "the Court has no power to order that the applicant be released from immigration detention on an interlocutory basis in circumstances where he is an unlawful non-citizen".
The decision in CZCV is also noteworthy in that it is one of the few cases that have addressed the requirement in s 196(4) that the person is detained "as a result of" the cancellation of his or her visa. In the earlier decision in WAD 230/2014 at [17]-[18], Gilmour J had observed that those words "must be understood in the context of s 189" such that "where ... a person has the status of being an unlawful non-citizen because of a decision to cancel his or her visa under s 501 that detention is 'as a result of' the cancellation under s 501". In CZCV, however, after the applicant's bridging visa had been cancelled and he had been taken into immigration detention, his application for a protection visa had subsequently been refused by a delegate of the Minister. In such circumstances, the applicant argued that s 196(4) did not apply because he was detained as a result of the refusal of his protection visa application, which "broke the nexus between the cancellation of his visa under s 501(3A) and his ongoing detention". That submission was rejected by Rangiah J, who found (at [16]) that the applicant was an unlawful non-citizen who was required to be detained under s 189 "since he does not hold a visa that is in effect", and that this was because his visa was cancelled under s 501(3A):
Accordingly, within s 196(4), he is detained "as a result of the cancellation of his…visa under section 501". The fact that the applicant does not hold a visa for a second reason, namely, that his application for a Protection Visa was refused, does not remove the applicant's detention from that description. Section 196(4) requires that detention be "a result" of the cancellation under s 501, not that it be the sole reason.
In Erden, the applicant had been taken into immigration detention upon the completion of a period of imprisonment, during which his visa had been mandatorily cancelled under s 501(3A) of the Migration Act. He applied for interlocutory relief to be released from immigration detention pending the resolution of his substantive application, in which he contended that his detention was unlawful on the basis that he was an Australian citizen (and therefore not an unlawful non-citizen). In dismissing the interlocutory application, Thomas J concluded (at [39]) 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)". Justice Thomas (at [38]) saw no reason to depart from the reasoning in Ongel, Durani, WAD 230/214, AFF20 and CZCV.
The applicant in Erden advanced an argument that "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" (at [21]). That argument was rejected by Thomas J as inconsistent with the words used in s 196(4), which "do not relate to the nature of proceedings or relief sought" but rather "describe the requirements as to circumstances leading to the person being detained which must be satisfied to bring s 196(4) into operation" (at [16], [22]). Justice Thomas stated (at [23]-[24]):
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".
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.
Further, Thomas J (at [26]-[32]) considered that this construction of s 196(4) was supported by the extrinsic material to the 2003 Amendment Act (if it were relevant), noting that it was "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", which was not limited to proceedings involving judicial review of the visa cancellation decision.
The applicant in Erden also advanced a contention to the effect that s 196(4) applies to a person who is "in fact" an unlawful non-citizen detained under s 189, as opposed to a citizen who was purportedly detained under that section (as was alleged by the applicant in that case). Justice Thomas rejected that contention on the basis that s 189 of the Migration Act operates where an officer "knows or reasonably suspects" that a person is an unlawful non-citizen, so that s 196(1) and (4) do not assume that the person is in fact an unlawful non-citizen: at [34]-[35].
Most recently, in Kapeli, O'Bryan J considered the proper construction of s 196(4) of the Migration Act in the context of an application for habeas corpus based on an allegation that the applicant was an Aboriginal Australian and not an alien within the meaning of s 51(xix) of the Constitution (see Love v Commonwealth (2020) 270 CLR 152). The applicant submitted that the effect of s 196(4) was to place on the respondents the burden of establishing on the balance of probabilities that the applicant was not an Aboriginal Australian, on the basis that the detainer must "negative both limbs" of s 196(4) by proving "first, the detention is lawful and, second, that the person detained is an unlawful non-citizen" (and not an Aboriginal Australian). In the course of rejecting this submission, and after referring to the decision of Besanko J in Burgess at [111]-[114], O'Bryan J relevantly stated (at [217]):
[Section] 196(4) contemplates two types of application that may be made to the Court to challenge a person's detention and bring it to an end. The first is a challenge to the lawfulness of the detention, which requires consideration of the exercise of the power to detain under s 189. The second is a challenge to the decision that rendered the person an unlawful non-citizen, typically the cancellation of the person's visa. In both cases, the purpose of s 196(4) is to prevent the Court from ordering the release of the person from detention on an interlocutory basis. The subsection stipulates that a person may only be released on the final determination of either application by the Court.
Against the background of these decisions, the applicant relies on the decision of Wigney J in BHL19 in support of his submission that s 196(4) is limited to proceedings in which a detainee seeks judicial review of the cancellation decision as a result of which he or she is detained under s 189 of the Migration Act. The applicant in BHL19 was detained under s 189 following the refusal of his application for a protection visa on character grounds under s 501(1) of the Migration Act. Following unsuccessful judicial review proceedings to challenge that decision, the applicant challenged the lawfulness of his continued detention on the basis that the Commonwealth had failed to remove him from Australia as soon as reasonably practicable, relying on the prevailing decision at first instance in AJL20 prior to its reversal by the High Court on appeal. It was not in dispute in that case that the applicant was an unlawful non-citizen.
Justice Wigney accepted in BHL19 (at [22]) that, as a consequence of s 196(4), "the Court has no power to grant interlocutory relief which includes an order for the release of an unlawful non-citizen in the context of an application for judicial review of a decision to cancel that person's visa pursuant to s 501(1) of the Act and cognate provisions". However, s 196(4) had no application on the facts of that case, because the applicant was in detention as a result of a visa refusal decision (and not a cancellation decision) under s 501. Further, Wigney J noted (at [23]) that the interlocutory relief was sought by the applicant not in the context of the judicial review of any decision, but rather in the context of an application for relief in the nature of habeas corpus. In such circumstances, the question arose whether the "combined effect" of s 196(3) and (6) was to "oust or abrogate" the power that Court would otherwise possess to order the applicant's release from detention on an interlocutory basis. Justice Wigney concluded that those provisions did not oust the Court's power to grant such interlocutory relief, which had been previously recognised in VFAD, noting (at [31]) that s 196(3) was "largely unaffected" by the 2003 Amendment Act and that the insertion of s 196(6) did not alter the conclusion regarding the construction of s 196(3) that had been adopted in VFAD. His Honour stated (at [31]):
The insertion of s 196(6), however, could not be said to be an unmistakably clear expression of Parliament's intention to abrogate the Court's power to make interlocutory orders for the release of unlawful non-citizens in circumstances not covered by s 196(4) of the Act. The conclusion reached by the Full Court in VFAD that s 196(3) of the Act does not abrogate the Court's power to make interlocutory orders under s 23 of the FCA Act accordingly remains.
This may be regarded as the basis for the conclusion that was expressed by Wigney J on the power of the Court to make an interlocutory order to release the applicant in that case from immigration detention (albeit that the interlocutory application was ultimately refused on balance of convenience grounds). Accordingly, his Honour proceeded to distinguish other decisions in which it had been held that there was no such power as having been concerned with cancellation decisions covered by s 196(4). While one exception was the decision of Murphy J in CMA19 v Minister for Home Affairs [2020] FCA 736, Wigney J distinguished and declined to follow that decision in so far as it was based on s 196(3), noting that there were sound reasons for refusing the interlocutory relief sought in that case irrespective of s 196(3), and that it did not appear that Murphy J had been taken to the decision in VFAD and other relevant authorities: see [35]-[39].
While s 196(4) was not directly raised for consideration in BHL19, Wigney J nevertheless made some observations about the mischief to which that provision was directed that are of particular relevance to the applicant's arguments in the present case (at [28]-[29]):
[I]t is clear that the 'mischief' to which the amendment which introduced s 196(4) to (7) of the Act was directed was the grant of interlocutory relief in the context of judicial review applications - in particular, applications for the judicial review of cancellation decisions: see the portion of the Explanatory Memorandum extracted in Burgess at [113]. There was nothing to suggest that the relevant mischief was the grant of interlocutory relief in the context of a claim by the detainee that he or she was being unlawfully detained otherwise than in the context of a judicial review application: see Burgess at [108], [114].
It follows that the legislative history and extrinsic material suggests that the legislative intention was to prevent the grant of interlocutory relief involving detention only in specific and narrowly defined circumstances: where the application for interlocutory relief was made in the context of a judicial review application and specifically a judicial review application in respect of a visa cancellation decision. The legislative history and extrinsic material does not support a construction of s 196(4) to (7) as precluding interlocutory orders for the release of unlawful non-citizens in any other circumstance.
The applicant relies on these observations as supporting his primary submission that s 196(4) only applies to a proceeding in which an applicant seeks relief by way of judicial review of a cancellation decision under s 501 and the other specified provisions. Accordingly, the applicant submits that it follows that s 196(4) is not applicable in the present case, in which the applicant seeks relief in the nature of habeas corpus based on the principles in Lim and NZYQ and does not challenge any visa cancellation decision. On that basis, the applicant relies on the power to grant interlocutory relief that was recognised in VFAD, the continued existence of which was confirmed in BHL19 in cases governed by s 196(3) and (6).
It may be noted that any observations made by Wigney J in BHL19 about the scope and operation of s 196(4) were plainly obiter in circumstances where (unlike the present case) it was common ground that s 196(4) was not in terms applicable. Further, the reasoning does not address or explain the language used in s 196(4) to cover a final determination made by a court in two alternative scenarios, one of which is directed to the lawfulness of detention and the other dealing with the question whether the person is an unlawful non-citizen, or the references in the accompanying extrinsic material to any substantive court proceedings relating to the lawfulness of the person's detention. Moreover, s 196(4) has previously been applied in proceedings in which an applicant's substantive claim challenged the lawfulness of detention and sought habeas corpus without or independently of any claim for judicial review of a visa cancellation decision: see CZCV and Erden, discussed above.
Accordingly, in my view the balance of authority supports the following conclusions as to the application of s 196(4) as a matter of statutory construction.
First, s 196(4) should be construed as removing the power of this Court to order the release on an interlocutory basis of a person detained as a result of the cancellation of his or her visa under s 501 and associated character provisions.
Second, I do not consider that the language of s 196(4) is open to a construction that limits its application to the power to grant interlocutory relief in proceedings for the judicial review of a visa cancellation decision, as opposed to proceedings challenging the lawfulness of detention (such as a proceeding for a writ of habeas corpus or an order in the nature of habeas corpus, or analogous declaratory relief). No such limitation is expressed in s 196(4), and it does not sit comfortably with the text or context of s 196(4) to subject it to an implied limitation. The language of s 196(4) contemplates that it can apply in any proceedings in which a court may reach a final determination that a person's detention is unlawful, or that the person is not an unlawful non-citizen. The former cannot be regarded as mere surplusage or as being confined to a consequence of the latter.
Third, this construction is confirmed by s 196(5)(a), which for the avoidance of doubt provides that s 196(4) applies whether or not there is a real likelihood of the person being removed or deported in the reasonably foreseeable future. That possibility is designed to address any limit on the power to detain which arises when removal cannot be effected, which at the time of the enactment of s 196(4) had been recognised as a statutory limitation under the decision in Al Masri, and which is now revived as a constitutional limitation under the High Court's decision in NZYQ. The point of importance is that such limitations are independent of any challenge to the validity of a decision in relation to the cancellation of a visa.
As mentioned above, the applicant relied on an alternative argument that s 196(4) could apply to proceedings in which the lawfulness of a person's detention was challenged as being beyond the statutory power conferred by ss 189 and 196, but did not apply to a proceeding in which a person contended that his or her detention was unlawful based on the infringement of a constitutional limit within which such a power to detain may be validly conferred (such as was upheld by the High Court in NZYQ). It is not possible to discern any legislative intention to draw such a distinction. Accordingly, at least as a matter of statutory construction, I do not consider that it is possible to limit the application of s 196(4) in the manner suggested by the applicant.
I note that there was no dispute that the applicant in the present case was detained "as a result" of the cancellation of his BVC for the purposes of s 196(4), notwithstanding that the applicant was serving a sentence of imprisonment at the time of that cancellation decision and was not taken into immigration detention under s 189 until he was released from criminal custody some time later. In that respect, the circumstances of the present case are comparable to those addressed in Erden. The issue addressed by Rangiah J in CZCV of multiple possible reasons for the person's detention under s 189 does not arise here. To the extent that s 196(4) turns on any factual inquiry as to the reason for or basis on which the person is detained, the parties accept that the operative and ongoing cause of the applicant's detention is the cancellation of his visa under ss 501(3A) and 501CA.
Accordingly, I find that s 196(4) of the Migration Act on its proper construction is applicable to the present proceedings and denies power to grant the interlocutory relief sought by the applicant.
For completeness, I note that the applicant did not seek to challenge the constitutional validity of s 196(4) as so construed. As the Commonwealth argued, s 196(4) might be properly regarded as being directed to the powers of courts, rather than itself conferring authority to detain a person during the period prior to a final determination by a court that the person's detention is unlawful. As such, questions might possibly be raised as to whether the provision amounts to an impermissible direction as to the manner in which a Ch III court should exercise its jurisdiction and powers, or whether it is consistent with the nature and independence of such courts: see, e.g., Lim at 27, 36-37 (Brennan, Deane and Dawson JJ); VFAD at [74]-[75] (Black CJ, Sundberg and Weinberg JJ). These questions have not been argued before me on the present application, and I say nothing further about them. In determining the present application, I have proceeded on the basis that s 196(4) is within constitutional power and is valid.