Indefinite Detention

Indefinite detentionIndefinite detention typically arises in circumstances where a person is held in immigration detention and it is not possible to remove them from Australia. In recent years a number of applicants who have alleged indefinite detention have had mixed success in obtaining writs of habeus corpus for their release (see for example my post about ALJ20). Those applications had to grapple with Al-Kateb v Godwin (2004) 219 CLR 562 which was authority for the lawfulness of indefinite detention.

The issue arises from the operation of sections 189(1) and 196(1) of the Migration Act dealing with the long term detention of unlawful non-citizens. Those sections, paraphrasing, require the detention of unlawful non-citizens but only until they are either: (a) granted a visa; or (b) removed from Australia. In the case of the latter there is a duty that the removal happen as soon as practicable.

November 2023 – NZYQ

NZYQ is a Rohingya muslim man who arrived in Australia by boat in 2012. While he was in the community on a bridging visa he committed a sexual offence against a child to which he pleaded guilty and was sentenced to 5 years imprisonment. He applied for a protection visa from jail. He was found to have a well founded fear of being returned to Myanmar, he was also found to be a danger to the Australian community. The result was that his protection visa was denied.

As a result, he found himself the subject of indefinite detention because he couldn’t be sent back to Myanmar and the effect of the conviction was that no other country in the world that would offer him resettlement. 

The Constitutional issue

All lawyers know that constitutional law is complicated. So, I am making a gross oversimplification by saying that at the heart of this decision is the difference between punishment (which can only be ordered by a court) and administrative detention. A recent example of how this works was the finding that it was an invalid use of power for the executive to administratively put an end to someone’s citizenship in some circumstances (see the Alexander case).

In NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs [2023] HCA 37, the High Court found that the statement in Al-Kateb that detention was non-punitive was incomplete. The Court found:

The application of the principle in Lim, although ultimately directed to a single question of characterisation (whether the power is properly characterised as punitive), requires an assessment of both means and ends, and the relationship between the two.[52] Applying that principle in circumstances where there is no real prospect of the removal of the alien from Australia becoming practicable in the reasonably foreseeable future, it cannot be said that, objectively determined, the “purpose of the detention is to make the alien available for deportation” or “to prevent the alien from entering Australia or the Australian community” pending the making of a decision as to whether or not they will be allowed entry.

Accordingly, that purpose can’t be made out when there simply isn’t any real prospect of achieving removal from Australia.”

The result – no basis for indefinite detention

[71] The consequence of ss 189(1) and 196(1) of the Migration Act not validly applying to authorise the continuation of the plaintiff’s detention at the end of the hearing on 8 November 2023 is that the sole statutory basis relied on by the defendants for the continuation of his detention fell away and the plaintiff was entitled to his common law liberty. 

[72] Release from unlawful detention is not to be equated with a grant of a right to remain in Australia. Unless the plaintiff is granted such a right under the Migration Act, the plaintiff remains vulnerable to removal under s 198. Issuing of a writ of habeas corpus would not prevent re‑detention of the plaintiff under ss 189(1) and 196(1) of the Migration Act in the future if, and when, a state of facts comes to exist giving rise to a real prospect of the plaintiff’s removal from Australia becoming practicable in the reasonably foreseeable future. Nor would grant of that relief prevent detention of the plaintiff on some other applicable statutory basis, such as under a law providing for preventive detention of a child sex offender who presents an unacceptable risk of reoffending if released from custody.

So, a writ of habeas corpus requiring the release of NZYQ was issued forthwith. Of course we all know that the decision has generated lots of debate in the media and in parliament about releasing unsupervised non-citizen criminals into the community.

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Remitted

jettisonedYou may remember that the High Court remitted QYFM to a differently constituted Full Federal Court after it found that Justice Bromich should have recused himself. I have previously blogged about the recusal decision.

When the matter arrived back in the Full Court the original grounds of appeal were “jettisoned” and leave was sought to rely on six new ones. The appellant was also granted leave to rely on the AAT transcript which had not been before the original Full Court. That transcript revealed that the Appellant (who was self represented in the AAT) had been given a warning about the privilege against self incrimination. One of those warnings arose in the context of a reference from a former employer WS. Apart from being unsure of WS’s gender the following occurred:

SENIOR MEMBER: All right. And how do you know [WS]?

WITNESS: I know him from a long way back, so [WS] is a long way back.

SENIOR MEMBER: Okay. And what do you mean a long way back, is that a friendship or did you work for him or how do you know each other?

WITNESS: It’s a friend – he’s a friend.

SENIOR MEMBER: Oh he’s a friend?

WITNESS: Yes.

SENIOR MEMBER: So have you worked for [WS]?

WITNESS: No.

WITNESS: No, I have not worked for him (indistinct).

SENIOR MEMBER: All right. Well why does [WS] then say in his letter, he was with us from July 2011 to December 2012 and his high work ethic and leadership potential was realised, resulting in [the appellant] being quickly promoted to warehouse supervisor, if you haven’t worked for him, how can it be that he said these things?

WITNESS: I think I must ask him what do they call it? I must ask him some character reference and that’s what he was referring to so (indistinct) people to – (indistinct) people as, you know, helping them – yes, you know, as a friendship helping and that’s why I think he might have meant it that way.  But I have no word for it.

SENIOR MEMBER: So has [WS] provided false information to the tribunal, saying that you had worked for him?

WITNESS: It could be so – – –

SENIOR MEMBER: But … you provided these letters to the tribunal in support of your case, why have you provided something that’s false?

Things only got worse when later that day, the Tribunal telephoned WS.  The transcript records, in essence, his evidence that he had never known the appellant.  The Tribunal then asked whether the appellant had “any questions at all of the witness”.  The appellant replied:  “No”. This led the Senior Member to say: ” … I have some serious doubts … that you have provided statements that are true and accurate“.

Whatever the legal merits (or not) of this case were, credibility issues like the one created for himself were very unhelpful to the application!

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Section 48A Bar

Is there a section 48A bar arising from the following facts:

  1. The Applicant applied for a protection visa in 2013;
  2. The application was refused in 2014;
  3. In September 2017, the AAT affirmed the delegate’s decision; 
  4. On 12 September 2017 (the day following the AAT decision) the Assistance Minister used the power in s417(1) to grant a three month visitor visa with a no further stay condition on it; and
  5. On 12 October 2017 the Applicant applied for a second protection visa.

That second application was found to be invalid on the basis that there was a section 48A bar which had not been waived. An application for judicial review was made in the Federal Circuit and Family Court of Australia where Judge Laing found that there was a s48A bar. The matter then went to the Full Federal Court (see Fel17 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCAFC 153).

It was a 2:1 majority decision in the Full Court:

  • In seven succinct paragraphs Justice Snaden found that: “There is nothing about the subject matter, scope or purpose of the Act that should require or suggest that the exercise of power under s 417(1) operates so as to revive the by-then-extinguished legal effect of the decision whose affirmation the Minister has seen fit to replace with something more favourable.”; and
  • Unfortunately, Justices Halley and Abraham found that: “In short, s 48A of the Migration Act prohibits the making of a further protection visa application where one has already been made and refused. That is subject only to s 48B, where the Minister can personally exercise his power to consider another application if it is considered in the public interest to do so. That power was not exercised. The Assistant Minister substituting the Tribunal’s Decision and granting a different visa, a three month visitor visa, pursuant to s 417(1) of the Migration Act, does not mean that the appellant has no longer been refused a protection visa for the purposes of s 48A.”

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A matter

Even those of us who didn’t do very well at constitutional law know that having a matter is a pre-requisite for federal jurisdiction. In AZC20 v Minister [2023] HCA 26 the High Court found that there had been no matter before the Full Federal Court.

The facts

The facts of AZC20 (which are a bit complicated and involve several sets of proceedings and appeals) were that:

  1. AZC20 is an Iranian gentleman who arrived in Australia by boat in 2013;
  2. His protection visa application was unsuccessful and he has been held in immigration detention ever since his arrival;
  3. He commenced proceedings in the FCA seeking orders that the Minister remove him as soon as practicable to an offshore processing facility (s198AD);
  4. He was successful in obtaining that order, together with an order that as an interim step he be moved to home detention (in the home of one of his supporters)
  5. On the day that the home detention was to take effect, two things happened. Firstly, Nauru advised it would not take AZC20 and secondly the Minister used the power under 198AE (to waive the requirement for removal under 198AD).

That resulted in the Commonwealth making an application in the FCA to vacate the orders, while AZC20 sought to vary them to ensure compliance with the home detention orders. Those applications were both refused. The Commonwealth appealed. AZC20 then started the “s198 mandamus proceeding” which was eventually moved into the FCA where it was adjourned pending the appeal. During the hearing, the Full Court raised the issue about whether the utility of the appeals was of general wider importance but unrelated to AZC20. It proceeded by considering the questions before it as one of “discretion” not “jurisdiction” and allowed both of the Commonwealth appeals.

By the time the matter gets to the High Court, the issue is whether there was a “matter” before the Full Court.

What’s a matter?

 A matter has two elements:

  • the subject matter itself as defined by reference to the heads of jurisdiction [in ss 75 and 76], and the concrete or adequate adversarial nature of the dispute sufficient to give rise to a justiciable controversy
  • The second requirement to identify some “immediate right, duty or liability” to be established by the determination of the court “reinforces that the controversy that the court is being asked to determine is genuine, and not an advisory opinion divorced from a controversy”. That requirement applies in both original and appellate jurisdiction.

The decision

The High Court explained (at [35]-[36]):

[35] On appeal, therefore, the question is not whether the party can establish the claimed legal right, duty or liability, as that question has been determined. The question is not whether the party continues to have the interest necessary to obtain relief, because that question has been overtaken by the grant of relief or by the refusal of relief. The question on appeal and for determination on appeal is whether the orders of the primary judge should be affirmed, varied or reversed – that is, whether the appeal should be allowed and, if so, what orders should be made in the place of the primary judge’s orders. But the appellate court’s supervisory function over the exercise of original jurisdiction by the primary judge is not an end in itself. The second element required to form a “matter” still applies – there must be a controversy over some immediate right, duty or liability. Usually, there is a live controversy because the orders of the primary judge continue to have effect in determining the parties’ rights, duties or liabilities, unless set aside on appeal. In seeking to appeal the orders made at first instance, one or more of the parties are seeking to challenge the continuing effect of the orders on the determination of their respective rights, duties or liabilities. As will be explained, that critical feature – any controversy over the continuing effect of the orders on the parties’ rights, duties or liabilities – was absent in the appeals before the Full Federal Court.

[36] The appellant submitted before this Court that there was no “matter” before the Full Federal Court because the orders that the Commonwealth parties sought to appeal had no operative legal effect by the time the Full Court determined the appeals. At the time the appeals were filed, Nauru had informed Australia it would not accept the appellant and the Minister had voluntarily engaged s 198AE such that s 198AD did not apply to the appellant. Since the home detention order was dependent on the s 198AD mandamus order, the events rendering the s 198AD mandamus order inoperative similarly made the home detention order inoperative. Even if there was a “matter” when the appeals were filed, there ceased to be a “matter” from the moment during the hearing when the Commonwealth parties undertook not to seek the costs of the trial or the appeals.

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Double counting

Giving weight to the serious of offending is important in character cancellation matters but double counting is easy to do and not permissible.

Mr Jama was a NZ citizen who arrived in Australia as a 17 year old in 2008. His visa was cancelled in 2019 after a conviction for aggravated armed robbery. Needless to say his 444 visa was cancelled.

Clearly the seriousness of his offending and how it was considered in the context of Direction 65 was an important factor in his challenge to the cancellation.

Mr Jama’s argument was that the Tribunal was double counting the weight it attributed to the seriousness of his offending: first by weighing it against the “strength, nature and duration of ties”; and secondly, by concluding that the factors in favour of revocation (including the “strength, nature and duration of ties”) were outweighed by the seriousness of his offending. 

In Ali v Minister [2018] FCA 1895, Bromwich J found that the Tribunal could assess the strength and nature of ties to Australia holistically and to examine how the quality of those ties was affected by the offending. However, in Jama v Minister for Immigration [2023] FCAFC 148, the Full Court found that this is not how the decision maker had approached the issue. The Full Court found:

[31]….. [the decision maker] applied a discount to the weight to be given to the evident strength, nature and duration of Mr Jama’s ties by reason of the nature and seriousness of his offending. That discount was then applied again in the Tribunal’s evaluation of the weight of the primary and other considerations at Reasons

[32] With respect to the primary judge, it is difficult to accept that the Tribunal’s reasoning at Reasons [197] can be read other than as recording that the Tribunal had already found that the strength, nature and duration of ties had been found to weigh only slightly because the Tribunal had already discounted that “other circumstance”, at [175], on account of the seriousness of Mr Jama’s offending. It is readily apparent from a reading of the Reasons as a whole that the Tribunal did indeed “double count” the seriousness of Mr Jama’s offending.

In other words, Mr Jama was successful.

The Ministerial Directions on cancellations and revocations can be more nuanced than they first appear. It is certainly worthwhile reading Ali and also BOE21 which are referred to in the Jama judgment.

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Prescribed fee

payment of prescribed feeAn application to the AAT has to be accompanied by the prescribed fee pursuant to section 347(1)(c) of the Migration Act. Despite my initial view “how hard can it be?” there have been at least two cases on this topic this year!

Fee reduction application

In the first case, Hanna v Minister [2023] FCA 604, the Applicant applied for a fee reduction at the time application was lodged. No actual fee was paid (in the prescribed period) and the Tribunal found it was without jurisdiction. On appeal the argument was that no fee was payable until the Tribunal decided if there would be a fee reduction.

Cheeseman J noted that: “In this appeal, the appellant had to navigate the twin shoals of the 2011 amendment, by which the possibility of outright waiver of the prescribed fee had been removed, and his failure to pay at least 50% of the prescribed fee within the prescribed period.”

Her Honour did not accept the Appellant’s arguments, but left open the question about what would have happened if 50% of the fee had in fact been paid. I wouldn’t advise testing it!

Payment of wrong amount

In the second case, BXS20 v Minister for Immigration [2023] FCAFC 20 the wrong amount was paid, leaving a shortfall of $58. That shortfall was eventually paid, but after the expiry of the prescribed period. Once again, the AAT treated the application as invalid (and it had no jurisdiction).

Although the Full Court considered the relevant cases on payments (by credit card) and the meaning of “accompanied” (which has some flexibility), the preferable construction of 347(1) was that both lodgement and payment had to occur in the prescribed period. In a separate (but not dissenting) judgment, Stewart J threw out a lifeline for future applicants when he observed that rectification (which wasn’t argued) acts retrospectively. So, had been rectification been raised, depending on the facts, the case may have succeeded.

Conclusion

I certainly understand that the prescribed fee is a considerable amount for some applicants, but paying the correct amount is a lot cheaper than fighting about it in the courts afterwards.

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