BHL19 v Commonwealth of Australia [2021] FCA 462

Federal Court of Australia

BHL19 v Commonwealth of Australia [2021] FCA 462 File number: VID 178 of 2021

Judgment of: WIGNEY J

Date of judgment: 29 April 2021

Date of publication of reasons: 7 May 2021

Catchwords: MIGRATION – where the applicant's application for a protection visa was refused on character grounds under s 501(1) of the Migration Act 1958 (Cth) – where the applicant has been detained since his last avenue of appeal in respect of his challenge to the Minister's refusal decision was dismissed – where it is accepted that the applicant has a well-founded fear of persecution and is at risk of serious harm if returned to his country of citizenship – where it is accepted that Australia owes the applicant non-refoulement obligations under international treaties – where the applicant has been and is detained as an unlawful non-citizen under s 189 of Migration Act 1958 (Cth) – whether the applicant is being detained for the purpose of removal – whether the applicant's removal is being pursued or carried into effect as soon as reasonably practicable – whether the applicant's detention is unlawful – application for relief in the nature of a writ of habeas corpus – whether the Court has power to grant interlocutory relief involving the release of an unlawful non-citizen – whether the Court's power to grant such interlocutory relief has been abrogated by s 196(3) and (6) of the Migration Act 1958 (Cth) – whether the decision in AJL20 v Commonwealth [2020] FCA 1305 is plainly wrong – whether the applicant had demonstrated a serious question to be tried in respect of the unlawfulness of his detention – whether the balance of convenience favoured an interlocutory order releasing the applicant from detention – interlocutory application dismissed