Abeyesinghe v Minister for Immigration & Anor (No.2)

In *Abeyesinghe v Minister for Immigration & Anor (No.2)*, Jones J considered the lawfulness of the continued immigration detention of Mr Abeyesinghe, an unlawful non-citizen. The Minister for Immigration and Border Protection was the respondent.

The central legal issue before the Court was whether Mr Abeyesinghe's detention was rendered unlawful by the content of a notice he received regarding visa application time limits, specifically Form 1423, which purported to inform him of his obligations under section 195 of the *Migration Act 1958* (Cth). The question was whether this notice, by its terms, imposed an obligation on Mr Abeyesinghe that, if not met, would lead to the cessation of his ability to apply for most visas, thereby potentially impacting the lawfulness of his continued detention under section 196 of the Act.

Jones J reasoned that section 196 of the Act mandates the detention of an unlawful non-citizen until they are removed, deported, or granted a visa. The Court noted that section 196(3) explicitly states that a court cannot release an unlawful non-citizen from detention except in the circumstances outlined in paragraphs (1)(a), (aa), or (b), or if a visa is granted. The notice, Form 1423, informed Mr Abeyesinghe of time limits for applying for visas under section 195. However, the Court found that section 195 itself does not create an obligation to apply for a visa, nor does it mandate that failure to apply within the stated time limits will result in the cessation of the right to apply for a visa. Rather, section 195 merely sets out a timeframe within which an application can be made, and if not made, the applicant may not be able to apply for certain visas thereafter. The Court concluded that the notice, by its wording, did not impose a condition that would render the detention unlawful if not met, as it did not create a new obligation or a definitive bar to future visa applications beyond what section 195 already provided.

The Court found that the detention of Mr Abeyesinghe remained lawful under section 196 of the Act.