AJL20 v Commonwealth of Australia

Case [2020] FCA 1305


FEDERAL COURT OF AUSTRALIA

AJL20 v Commonwealth of Australia [2020] FCA 1305  

File numbers: VID 1193 of 2019
VID 355 of 2020
Judgment of: BROMBERG  J
Date of judgment: 11 September 2020
Catchwords:

 CONSTITUTIONAL LAW – restraints upon administrative detention flowing from Chapter III of the Constitution discussed.

MIGRATION – Migration Act 1958 (Cth) ss 189, 196 and 198 – whether applicant’s immigration detention unlawful – whether the detention of an unlawful non-citizen under the Act is authorised and lawful “until” one or other of the events listed in s 196(1) occurs or alternatively, whether detention is unlawful once there is a departure from the permissible purpose of the detention – whether detention under the Act is lawful only if it is for a permissible purpose – where permissible purpose of the detention is the removal of the unlawful non-citizen from Australia, whether a failure to pursue or carry into effect the removal “as soon as reasonably practicable” (s 198) entails a departure from the permissible purpose of the detention and renders the detention unlawful – onus of proof where order in the nature of a writ of habeas corpus is sought – whether there was a departure from the removal purpose of the applicant’s detention in circumstances where there was a failure to pursue removal of the applicant to applicant’s country of nationality – whether that failure may be justified or explained by reference to protection obligation not to refoul applicant to applicant’s country of nationality in light of the requirement under s 197C that non-refoulement obligations are irrelevant to the obligation to remove an unlawful non-citizen under s 198 – whether an order in the nature of habeas corpus appropriate to alleviate unlawful detention – whether s 189 would permit immediate re-detention of applicant if released – application allowed – order made that applicant be released from detention.

TORTS – false imprisonment – whether detention of applicant unlawful and applicant falsely imprisoned – liability found.    

Legislation:

Aviation Transport Security Regulations 2005 (Cth)

Migration Act 1958 (Cth)

War-time Refugees Removal Act 1949 (Cth)

Migration Amendment (Duration of Detention) Bill 2003 (Cth)

Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Bill 2014 (Cth)

Cases cited:

Al-Kateb v Godwin (2004) 219 CLR 562

ASP15 v Commonwealth (2016) 248 FCR 372

Attorney‑General (Vict.) (Ex rel. Dale) v The Commonwealth (1945) 71 CLR 237

Burgess v Commonwealth [2020] FCA 670

Chan v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 134 FCR 308

Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs (1992) 176 CLR 1

CMA19 v Minister for Home Affairs [2020] FCA 736

Coco v The Queen (1994) 179 CLR 427

Daniel v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 196 ALR 52

DMH16 v Minister for Immigration and Border Protection (2017) 253 FCR 576

Ex parte Walsh and Johnson; Re Yates (1925) 37 CLR 36

Guo v Commonwealth of Australia (2017) 258 FCR 31

Koon Wing Lau v Calwell (1949)…

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Details
AGLC
AJL20 v Commonwealth of Australia [2020] FCA 1305
Case
[2020] FCA 1305
Decision Date

CaseChat Overview and Summary

The applicant, AJL20, challenged the legality of their immigration detention by the Commonwealth of Australia. The case was heard in the Federal Court of Australia, with the primary issue being whether the applicant’s detention under the Migration Act 1958 (Cth) was lawful. The applicant argued that their detention was unlawful as it departed from the permissible purpose of removal from Australia. The court had to determine whether the detention was lawful until one of the events listed in s 196(1) of the Act occurred, or if it was unlawful once there was a departure from the permissible purpose of detention. Another key issue was whether the failure to remove the applicant "as soon as reasonably practicable" constituted a departure from the removal purpose, thereby rendering the detention unlawful.

The court examined the relevant provisions of the Migration Act and found that the detention was unlawful if it departed from the purpose of removing the applicant from Australia. It was determined that the applicant’s removal had not been pursued as soon as reasonably practicable, leading to a departure from the removal purpose. This conclusion rendered the applicant’s detention unlawful from 26 July 2019 onwards. The court also addressed the question of false imprisonment, concluding that the applicant was falsely imprisoned during the unlawful detention period. The court further considered whether a writ of habeas corpus should be issued to command the Commonwealth to release the applicant, finding that such an order would be appropriate and not inutile, despite the Commonwealth's argument that re-detention would be lawful under s 189 of the Act.

The court concluded that an order should be made for the applicant’s release from detention, and the proceeding was listed for a case management hearing to determine damages for the claim of false imprisonment. The court did not impose any supplementary conditions on the applicant as no such application had been made. This decision provided clarity on the legal standards governing immigration detention under the Migration Act and the appropriate remedies for unlawful detention.

Orders

Orders of the court

1. The proceeding be listed for a case management hearing at 9.30 am on 29 September 2020.

[Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011]

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

That conclusion, in my view, compels my ultimate conclusion that, in the second period and on an objective assessment of the relevant circumstances, the removal of the applicant from Australia has not been shown to have been undertaken or carried into effect as soon as reasonably practicable, that there was therefore a departure from the requisite removal purpose for the applicant’s detention over the course of that period and that, as a consequence, the applicant’s detention by the Commonwealth was unlawful throughout that period.CONCLUSION I have concluded that, since 26 July 2019, the applicant’s detention by the Commonwealth has been unlawful. For the applicant’s claim of false imprisonment made in the proceeding that commenced in this Court, my holding requires that that proceeding be listed for further hearing as to damages. I will make an order to that effect in that proceeding. For the applicant’s claim in the proceeding commenced in the Federal Circuit Court, my holding requires me to determine whether an order in the nature of a writ of habeas corpus directed to the Commonwealth commanding it to release the applicant should be made. The Court’s jurisdiction to make that order is not in contest. The availability and appropriateness of that remedy is supported by the discussion at [72]-[74] above. No discretionary considerations that would serve to deny the appropriateness of an order requiring the applicant’s release from detention have been raised or are apparent to me. As Gray J said in Chan at [55] if habeas corpus is a discretionary remedy “the area in which discretion can be exercised must be very small. It is almost unthinkable that a court would sanction the continued unlawful detention of a person”. The Commonwealth did contend that an order releasing the applicant should not be made because s 189 of the Act would require an officer of the Commonwealth to immediately re‑detain the applicant. Although not put in these terms, that submission may be taken to suggest that an order releasing the applicant would be inutile and for that reason ought not be made. However, for the reasons given at [60]-[64], I do not accept that in the prevailing circumstances which have led me to hold that s 196 does not operate to render lawful the applicant’s continued detention, it would be lawful for an officer of the Commonwealth to re‑detain the applicant exercising the power conferred by s 189 of the Act. As Black CJ, Sundberg and Weinberg JJ said in Al Masri at [30], an intention ought not be imputed to Parliament “such that if s 196 did not operate to render lawful the continued detention of an unlawful non-citizen, that consequence could be avoided by a succession of repeated actions to detain under s 189”. Accordingly, the order I propose to make will have utility. Lastly, there are conflicting views and therefore some doubt (see Al-Kateb at [28] (Gleeson CJ) and at [142] (Gummow J) as against [243] (Hayne J)) as to whether I have the capacity to make a supplementary order imposing conditions upon the applicant, such as a condition requiring the applicant to inform the Commonwealth of where he resides. However, no application has been made for any such conditions to be imposed upon the applicant and, in that circumstance, I need not give that matter further consideration.

Ratio Decidendi

Legal Principle Established

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