Bethell v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

The case of Bethell v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs involved the applicant, a UK citizen who had been detained under the Migration Act 1958 (Cth) due to the cancellation of his visa, and the Minister who sought to remove him from Australia. The applicant had been detained since 26 February 2021 and applied for habeas corpus, contending that his continued detention was unlawful due to unreasonable delays in his removal. The applicant argued that the Minister had not taken reasonably practicable steps to remove him from Australia as soon as possible, as required by s 198(5) of the Act. The respondent argued that reasonable efforts had been made to remove the applicant and that the current detention was lawful for the purpose of removal.

The court considered the legal issues regarding the interpretation of ss 196 and 198 of the Act and the requirement of removing an unlawful non-citizen as soon as reasonably practicable. The court examined the case of AJL20 v Commonwealth of Australia [2020] FCA 1305, in which Bromberg J held that detention could only be lawful if it was for the permissible purpose of removal and that this purpose was conditioned by the requirement of removal as soon as reasonably practicable. The court also considered the principles set out in S4 [Plaintiff S4/2014 v Minister for Immigration and Border Protection (2014) 253 CLR 219] and Al-Kateb v Godwin [2004] 219 CLR 562. The court concluded that the phrase "as soon as reasonably practicable" required an objective assessment of all relevant circumstances, including the steps taken to pursue removal and those that were reasonably practicable but not taken.

The court found that the respondent had made ongoing and reasonable efforts to remove the applicant since 26 February 2021 and that there had not been an unreasonable delay. The court held that the current detention of the applicant was for the permissible purpose of removal and was therefore lawful. The court dismissed the applicant's application for habeas corpus and ordered that the applicant pay the respondent's costs of the proceeding.