Bethell v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 83

Federal Court of Australia

Bethell v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 83 Appeal from: Bethell v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 661

File number: QUD 191 of 2021

Judgment of: BROMWICH, LEE AND STEWART JJ

Date of judgment: 16 May 2022

Catchwords: MIGRATION – appeal from decision of primary judge dismissing Mr Bethell's application for habeas corpus –unlawful non-citizen – detention pending removal from Australia – where s 189 of Migration Act 1958 (Cth) requires unlawful non-citizen be detained – where s 196 requires unlawful non-citizen detained under s 189 be kept in immigration detention – where primary judge determined that detention was "not unlawful" – whether primary judge erred in failing to consider the lawfulness of the Minister's decision to cancel the appellant's visa – consideration of Commonwealth of Australia v AJL20 [2021] HCA 21; (2021) 95 ALJR 567 – whether delay in hearing application prevented fair hearing – whether costs can be awarded in a habeas corpus matter – allegation that remote hearing resulted in an "unfair hearing" – where appellant overseas – appeal dismissed

Legislation: Federal Court of Australia Act 1976 (Cth) ss 37, 43 Judiciary Act 1903 (Cth) ss 79, 80 Migration Act 1958 (Cth) ss 5, 14, 133C(3), 137K, 189, 195(1), 198, 474(2) Imperial Acts Application Act 1984 (Qld) Habeas Corpus Act 1640 (Imp) (16 Charles 1 c. 10) s 6 Habeas Corpus Act 1679 (Imp) (31 Charles 2 ch 2) Habeas Corpus Act 1816 (Imp) (56 George 3 ch 100)