Federal Court. Is s 196(4) of the Migration Act 1958 (Cth) limited "to the power to grant interlocutory relief in proceedings for the judicial review of a visa cancellation decision, as opposed to proceedings challenging the lawfulness of detention (such as a proceeding for a writ of habeas corpus or an order in the nature of habeas corpus, or analogous declaratory relief)"?
The Federal Court (FCA) described the relevant events as follows:
11 The applicant is a citizen of Malaysia who arrived in Australia on 7 August 2012 as the holder of a Class UD subclass 976 visitor visa. The visitor visa was valid for a period of three months, after which it appears that the applicant remained in Australia as an unlawful non-citizen until he made an application for a protection visa on 18 July 2019, at which time he was granted a Class WC subclass 030 Bridging C visa (BVC).
12 On 5 August 2019, a delegate of the Minister refused to grant a protection visa to the applicant, following which he applied for review of that decision by the Tribunal.
13 On 2 November 2022, the applicant was convicted in the County Court of Victoria on one count of trafficking a drug of dependence in a large commercial quantity, and was sentenced to imprisonment for a term of four years and six months.
14 On 29 March 2023, the applicant’s BVC was cancelled by a delegate of the Minister under s 501(3A) of the Migration Act. The applicant made representations seeking the revocation of the cancellation decision under s 501CA of the Migration Act.
15 On 2 June 2024, the applicant was taken into immigration detention upon his release from criminal custody. A Departmental Status Resolution Officer, after having interviewed the applicant, formed a reasonable suspicion for the purposes of s 189(1) of the Migration Act that the applicant is an unlawful non-citizen who is in the migration zone.
16 On 4 September 2024, a delegate of the Minister decided not to revoke the cancellation decision under s 501CA(4) of the Migration Act. The applicant has applied for merits review of the non-revocation decision. That application is currently listed for hearing by the Administrative Review Tribunal (ART) on 18 and 19 November 2024. The ART is required by s 500(6L) of the Migration Act to make a decision on the review by 28 November 2024, failing which it will be taken to have affirmed the decision under review.
17 On 11 September 2024, on the review of the decision to refuse to grant the applicant a protection visa, the Tribunal found that the applicant satisfies the criteria under s 36(2)(aa) of the Migration Act, and remitted the matter for reconsideration by the Minister. The Tribunal found that there was a real risk that the applicant might suffer significant harm as a necessary and foreseeable consequence of him being removed from Australia to Malaysia.
18 On 14 October 2024, [the Applicant] sent an email to the Department of Home Affairs, requesting that the applicant be immediately released from detention. [The Applicant] submitted to the Department that the applicant’s ongoing detention was no longer authorised under s 189 of the Migration Act “as the purpose for his detention had now expired” because of the protection finding made by the Tribunal, as a result of which the applicant could not be removed to Malaysia. [The Applicant] stated that “regardless of whether [the applicant] is granted a [protection visa] he will be released from detention at the conclusion of that process, either with a [protection visa] upon grant or in accordance with the High Court’s ruling in NZYQ”.
Some of the questions to the FCA were as follows:
Question 1: Can it be said that, "apart from any limitation validly imposed by s 196 of the Migration Act, this Court has power to make interlocutory orders requiring that a person in immigration detention be released pending the hearing and determination of a proceeding in which the person challenges the legality of his or her detention"?
Question 2: Is s 196(4) of the Migration Act 1958 (Cth) limited "to the power to grant interlocutory relief in proceedings for the judicial review of a visa cancellation decision, as opposed to proceedings challenging the lawfulness of detention (such as a proceeding for a writ of habeas corpus or an order in the nature of habeas corpus, or analogous declaratory relief)"?
Question 3: Does s 196(4) "apply to a proceeding in which a person contended that his or her detention was unlawful based on the infringement of a constitutional limit within which such a power to detain may be validly conferred (such as was upheld by the High Court in NZYQ)"?
Question 4: Was the applicant "detained “as a result” of the cancellation of his BVC for the purposes of s 196(4), notwithstanding that the applicant was serving a sentence of imprisonment at the time of that cancellation decision and was not taken into immigration detention under s 189 until he was released from criminal custody some time later"?
Question 5: Might s 196(4) be "properly regarded as being directed to the powers of courts, rather than itself conferring authority to detain a person during the period prior to a final determination by a court that the person’s detention is unlawful"?
Question 6: If the answer to Question 5 is 'yes', does it follow that "questions might possibly be raised as to whether the provision amounts to an impermissible direction as to the manner in which a Ch III court should exercise its jurisdiction and powers, or whether it is consistent with the nature and independence of such courts"?
Question 7: In determining whether the balance of convenience favours the grant of an interlocutory injunction ordering his release, would there "ordinarily be at least some material directed to matters such as the impacts on the applicant of ongoing detention and any potential risks arising from his release until the substantive application can be determined"?
Question 8: Can it be said that, "while not determinative, it is relevant in considering the balance of convenience to have regard to the statutory context including the duties under the Migration Act to detain unlawful non-citizens, and ultimately to remove unlawful non-citizens from Australia if and when the duty to do so arises"?
Question 9: If the answer to Question 8 is 'yes', is the position "clearly different in circumstances where the substantive issue raised by the proceeding challenges the underlying basis of the course that the legislative scheme envisages and requires"?
The FCA answered those questions as follows: