Federal Court of Australia AKW22 v Commonwealth of Australia [2022] FCA 869 File number: WAD 292 of 2021 Judgment of: COLVIN J Date of judgment: 26 July 2022 Catchwords: MIGRATION - application for issue of a writ of habeas corpus or orders in the nature of habeas corpus - where applicant detained under s 189(1) of the Migration Act 1958 (Cth) following cancellation of his visa under s 501(2) - where Commonwealth has provided evidence of the lawfulness of the detention at the time of hearing - where the applicant does not challenge that evidence - whether lawfulness need be proved throughout the entirety of the period of detention - whether applicant has discharged initial burden to show a 'probable cause' for the claim - application refused Legislation: Migration Act 1958 (Cth) ss 189, 196, 198 Cases cited: Burgess v Commonwealth of Australia [2020] FCA 670; (2020) 276 FCR 548 BVZ21 v Commonwealth of Australia [2021] FCA 1598 Coco v The Queen (1994) 179 CLR 427 Commonwealth of Australia v AJL20 [2021] HCA 21 Electrolux Home Products Pty Ltd v Australian Workers' Union [2004] HCA 40; (2004) 221 CLR 309 Guo v Commonwealth of Australia [2017] FCA 1355; (2017) 258 FCR 31 McHugh v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 223; (2020) 283 FCR 602 North Australian Aboriginal Justice Agency Limited v Northern Territory [2015] HCA 41; (2015) 256 CLR 569 Re Bolton; Ex Parte Beane (1987) 162 CLR 514 Ruddock v Taylor [2005] HCA 48; (2005) 222 CLR 612 Ruddock v Vadarlis [2001] FCA 1329; (2001) 110 FCR 491 Saeed v Minister for Immigration and Citizenship [2010] HCA 23; (2010) 241 CLR 252 Thoms v Commonwealth of Australia [2022] HCA 20 Division: General Division Registry: Western Australia National Practice Area: Administrative and Constitutional Law and Human Rights Number of paragraphs: 25 Date of hearing: 14 June 2022 Counsel for the Applicant: Dr J Cameron (pro bono) Counsel for the Respondent: Mr P Knowles with Ms C Ernst Solicitor for the Respondent: Australian Government Solicitor ORDERS WAD 292 of 2021 BETWEEN: AKW22 Applicant AND: COMMONWEALTH OF AUSTRALIA Respondent order made by: COLVIN J DATE OF ORDER: 26 july 2022 THE COURT ORDERS THAT: 1. The application for the issue of a writ of habeas corpus or orders in the nature of habeas corpus is dismissed. 2. The applicant pay the respondent's costs of the application to be assessed by a registrar on a lump sum basis if not agreed. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. REASONS FOR JUDGMENT COLVIN J: 1 The applicant is being held in immigration detention. He maintains that his detention is unlawful and seeks the issue of a writ of habeas corpus or orders in the nature of habeas corpus. He also seeks other relief. These reasons concern the claim to habeas corpus relief which has been ordered to be determined separately and in advance of any other issue. 2 It is common ground that the source of any authority to detain the applicant is s 189(1) of the Migration Act 1958 (Cth). It provides: If an officer knows or reasonably suspects that a person in the migration zone (other than an excised offshore place) is an unlawful non-citizen, the officer must detain the person. 3 The applicant does not dispute the evidence relied upon by the respondent to the effect that as at the time of hearing an officer knew or reasonably suspected that the applicant is an unlawful non-citizen. The case for the applicant relied upon the fact that there was no such evidence for earlier periods of his detention together with a submission to the effect that the onus of proof was on the respondent. He also claimed that in order for the applicant to be lawfully detained under s 189 it was necessary for his initial taking into detention to have been lawful. 4 The primary position of the respondent was that in order to succeed on an application for habeas corpus the applicant must show that at the time of hearing his detention was unlawful. The respondent contended this had been done by the undisputed evidence to the effect that the requirements of s 189 were satisfied at the time of hearing. In the alternative, the respondent submitted that on the evidence the lawful basis for detention at the time of the hearing had been demonstrated and as to any earlier point in time the applicant had to raise some basis to support a claim that the detention was unlawful before there could be any onus upon the respondent to adduce evidence concerning the position at any earlier time and as no such basis had been articulated by the applicant the claim by the applicant must fail. The respondent did not dispute that the ultimate onus to demonstrate the lawfulness of detention was to be borne by the detainer. 5 For the following reasons, the alternative submission by the respondent should be accepted. For that reason, the applicant is not entitled to a writ of habeas corpus or orders in the nature of habeas corpus. Therefore, it is not necessary to determine the merits of the primary submission. Claim that the onus was upon the respondent 6 It is not the case that an applicant can simply assert a claim that their detention is unlawful and thereby require proof of lawfulness. An applicant must have some basis to make the claim. The precise nature of what is required was considered by each member of the Court in McHugh v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 223; (2020) 283 FCR 602. 7 In McHugh, Allsop CJ stated that every detention except that ordered by a judge is prima facie unlawful: at [54]. Therefore, the task of any person detaining another person on the basis of executive authority was to prove the lawfulness of the detention (at [56]) and to do so by clear and cogent proof: at [57]. Nevertheless, the court does not grant relief upon request. A person being detained who seeks habeas corpus must meet a 'practical requirement for demonstrating reasonable justification or probable cause and for requiring the detainer to justify the detention by proving its lawful character': at [60]. However, what must be shown by an applicant should pay due regard to the fact that in respect of some detentions the incidents or aspects of the lawfulness of detention are within the knowledge and power of proof of the detainer (detention under s 189 being in such a category). 8 Besanko J concluded that in the circumstances of the case, Mr McHugh had raised a sufficient case concerning issues that bore on the lawfulness of his detention to require an answer from the respondent in terms of the holding of the reasonable suspicion by the detaining officer or officers under s 189: at [76]. His Honour determined that an applicant like Mr McHugh has an evidential burden in relation to the lawfulness of detention: at [91]-[94]. Noting that there were different formulations concerning the content of the evidential burden, his Honour referred to the need for an applicant to establish a prima facie case: at [95]. 9 Mortimer J expressed agreement with the Chief Justice stating that 'an applicant for the writ must adduce evidence demonstrating "probable cause", or show a "case fit to be considered"'. The contentions of the applicant for the writ must not be fanciful, or vexatious, and there must be some probative material adduced to justify the Court considering the allegations': at [273]. Her Honour emphasised the difference between the case where s 189 is relied upon and a case where there may be a warrant of arrest or committal where a substantial evidentiary burden may arise because 'the record of the authority for a person's detention' otherwise speaks for itself. In the context of s 189, 'it is important that the evidentiary burden reflect the circumstances of the exercise of the statutory power, and its nature'. 10 Otherwise, as to the ultimate burden of proof, all members of the court were agreed that the burden of proof of the lawfulness of the detention lies on the detainer. 11 In the present case, the undisputed evidence before the court concerning the required knowledge or suspicion of an officer is that as at the time of the hearing there was a relevant officer who had the required knowledge or suspicion. The applicant advanced no evidence as to why there was an issue concerning the lawfulness of his detention by reason of past circumstances. The applicant did not point to an unanswered inquiry or circumstances that required response having regard to the circumstances of the exercise of the statutory power and its nature. The applicant did not identify any circumstances about his visa status that might call into question whether an officer could have formed the required suspicion at the time he was taken into detention or thereafter. Unless and until that initial burden is discharged, the respondent is not required to prove the lawfulness of the detention. 12 The applicant made a submission to the effect that as the applicant had been in detention for a considerable number of years that was a factor which, of itself, called for an explanation. It is conceivable that there may be circumstances where the nature of the power relied upon to support executive detention may be such that it is so unlikely that a period of detention for a number of years might be supported by the power that the period of detention, of itself, was enough for the applicant to discharge the initial burden. However, there was no attempt to characterise the executive power under s 189(1) as falling into such a category. Further, by reason that the statutory regime may operate so that the period of detention continues whilst a person pursues available avenues for administrative and judicial review as well as appeals there is within that regime the possibility that detention may continue for a considerable number of years whilst those legal avenues are pursued. Therefore, the duration of detention, of itself, was not a basis upon which the applicant's initial burden may be discharged. 13 For those reasons, the claim to habeas corpus must fail. Claim that lawfulness of current detention depended upon past circumstances 14 A writ of habeas corpus or an order in the nature of habeas corpus will require a person to be released from their current detention. It will speak at a particular place and time: Ruddock v Vadarlis [2001] FCA 1329; (2001) 110 FCR 491 at [71] (Black CJ). Therefore, there must be an issue with the validity of the current detention. So, in order to obtain a writ of habeas corpus an applicant must show that, at the time of hearing, he or she is being detained without lawful authority BVZ21 v Commonwealth of Australia [2021] FCA 1598 at [21] (Bromwich J). 15 A person who was once detained without authority may subsequently become detained with authority: see Guo v Commonwealth of Australia [2017] FCA 1355; (2017) 258 FCR 31 at [83] (Jagot J); Burgess v Commonwealth of Australia [2020] FCA 670; (2020) 276 FCR 548 at [68] (Jagot J); and McHugh at [270]-[271] (Mortimer J). 16 Therefore, if the lawfulness of the current detention of a person depends solely upon current circumstances then it is only those circumstances that are to be examined. It is not necessary to consider past circumstances for the purposes of habeas corpus (though past periods of unlawful detention may still give rise to a claim of false imprisonment). If the lawfulness of the current detention depends wholly or partly on past circumstances then those circumstances must be evaluated. All of which is to expose the importance of considering the nature and extent of the particular power relied upon to justify detention. Whether past actions affect the lawfulness of the current detention depends upon the nature of the authority relied upon to detain the person. 17 In the course of oral argument, counsel for the applicant articulated the case as being advanced on the basis that the power in s 189(1) 'requires a person who is holding a suspicion today to be satisfied that at the time that the applicant was first taken into detention, his detention was lawful and supported by knowledge or reasonable suspicion'. In other words, ongoing lawful detention depends upon the person having been lawfully detained at the outset. 18 The case for the applicant called in aid the terms of s 196(1) which provides that: 'An unlawful non-citizen detained under s 189 must be kept in immigration detention until [relevantly for present purposes] he or she is removed from Australia …'. It was said that s 196(1) 'links' ongoing detention back to 'the original detention under section 189(1)'. 19 In the circumstances of the present case, the detention of the applicant was to be justified by s 189(1). The period of that detention was to be determined by s 196. These matters were explained by the majority in Commonwealth of Australia v AJL20 [2021] HCA 21 at [16]-[17] (Kiefel CJ, Gageler, Keane and Steward JJ) in the following terms: Read with the definition of 'detain' in s 5(1) of the Act, s 189(1) has two distinct and sequential operations. First, it authorises and requires a person in the migration zone to be taken into immigration detention by an officer who knows or reasonably suspects that the person is an unlawful non-citizen. Secondly, it authorises and requires the person, having been taken into immigration detention, to be kept in immigration detention by or at the direction of an officer who knows or reasonably suspects that the person is an unlawful non-citizen. Section 196 governs the period for which a person taken into immigration detention is to be kept in immigration detention under s 189(1) by or at the direction of an officer who knows or reasonably suspects that the person is an unlawful non-citizen. 20 Significantly, s 196 does not provide a separate source of authority to detain. In particular, it does not justify ongoing detention of a person who is not detained lawfully under s 189(1). Therefore, at all times, the detention of a person under s 189(1) depends upon the existence in the mind of a relevant officer of knowledge or reasonable suspicion that the person is an unlawful citizen. 21 When s 196 refers to an unlawful non-citizen being detained under s 189(1), it is referring to the duration of the second of the sequential operations under s 189(1) as described by the majority in AJL20. The opening words in s 196 reflect that connection. However, they do not alter the nature and character of the circumstances that must exist in order for the detention to commence and continue. Those matters are specified in s 189(1). Put another way, s 196 does no more than specify the circumstances that bring to an end the duration of a lawful detention under s 189(1). This is consistent with the expression of the attendant obligation in s 198 which requires the removal of an unlawful non-citizen 'as soon as reasonably practicable'. For completeness, I note that this was not a case where issues were raised as to whether removal was practicable or whether that obligation had been performed, as to which see Thoms v Commonwealth of Australia [2022] HCA 20. 22 In Ruddock v Taylor [2005] HCA 48; (2005) 222 CLR 612, it was stated by Gleeson CJ, Gummow, Hayne and Heydon JJ at [40] that what constitutes reasonable grounds for suspecting a person to be a non-citizen for the purposes of s 189(1) 'must be judged against what was known or reasonably capable of being known at the relevant time'. The same must apply where the detention arises from knowledge on the part of the relevant officer. 23 In Thoms at [21], Kiefel CJ, Keane and Gleeson JJ referred to Ruddock v Taylor as authority for the proposition: 'What constitutes reasonable grounds for suspecting a person to be an unlawful non‑citizen is to be judged as at the time the detention was effected'. Later (at [31]), their Honours said: 'So long as the officers in question had objectively reasonable grounds to suspect that [Mr Thoms] was a non-citizen who did not hold an effective visa, that was sufficient for his detention to be justified'. What was not required to be considered was whether, under the terms of s 189(1), ongoing detention depended upon past valid detention, particularly valid commencement of detention. Nevertheless, I am inclined to the view that it does not. As explained in AJL20, s 189(1) speaks both at the time of initial detention and continuously. Therefore, irrespective of the circumstances of past detention, it requires a person to be detained if the requisite suspicion is held. 24 However, I am mindful that because s 189(1) concerns that most fundamental of freedoms, namely the liberty of the subject, the principle of legality applies to its proper construction: see Re Bolton; Ex Parte Beane (1987) 162 CLR 514; Coco v The Queen (1994) 179 CLR 427 at 437 (Mason CJ, Brennan, Gaudron and McHugh JJ); and Electrolux Home Products Pty Ltd v Australian Workers' Union [2004] HCA 40; (2004) 221 CLR 309 at [21] (Gleeson CJ) quoted with approval in Saeed v Minister for Immigration and Citizenship [2010] HCA 23; (2010) 241 CLR 252 at [15] and North Australian Aboriginal Justice Agency Limited v Northern Territory [2015] HCA 41; (2015) 256 CLR 569 at [11] (French CJ, Kiefel and Bell JJ). Also, the contention to the effect that current detention under s 189(1) depended upon the validity of past detention, particularly initial detention, only emerged in the course of oral argument. Until then the submission appeared to be that the validity of any current executive detention always depended upon the validity of past executive detention irrespective of the terms in which the executive power to detain was conferred. In those circumstances, without the benefit of fully considered argument, I prefer to express no concluded view on the point. Conclusion and costs 25 For the reasons given, the application for habeas corpus relief should be refused. It was accepted that costs should follow the event. Therefore, there should be an order that the applicant pay the respondent's costs of the claim to that relief. I certify that the preceding twenty-five (25) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Colvin. Associate: Dated: 26 July 2022