AKW22 v Commonwealth of Australia

The applicant, AKW22, filed an application for a writ of habeas corpus or orders in the nature of habeas corpus against the Commonwealth of Australia. The applicant was detained under section 189(1) of the Migration Act 1958 (Cth) following the cancellation of his visa under section 501(2). The Commonwealth provided evidence of the lawfulness of the detention at the time of the hearing, which the applicant did not challenge. The primary issue before the court was whether the lawfulness of the detention needed to be proven throughout the entirety of the detention period and whether the applicant had discharged the initial burden to show a 'probable cause' for the claim.

The court considered that section 189(1) of the Migration Act concerns the fundamental freedom of the individual, the liberty of the subject, and therefore, the principle of legality applies to its proper construction. The court did not express a concluded view on the point as the contention regarding the validity of past detention only emerged during the oral argument. The court concluded that the application for habeas corpus relief should be refused, and the applicant was ordered to pay the respondent's costs of the claim.

The court dismissed the application for the issue of a writ of habeas corpus or orders in the nature of habeas corpus and ordered the applicant to pay the respondent's costs of the application to be assessed by a registrar on a lump sum basis if not agreed. The entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.