Differences between habeas corpus and false imprisonment

Some of the questions to the Full Court of the Federal Court (FCAFC) were as follows:

Question 1: Is habeas corpus a procedural writ whose is to enforce a legal right?

Question 2: Is habeas corpus a writ of right and not of course, as proper grounds for the issue of the writ must be shown?

Question 3: Are discretionary considerations relevant to the issue of a writ of habeas corpus?

Question 4: Does the Federal Court has both jurisdiction and power issue of a writ of habeas corpus ad subjiciendum or make an order in the nature of habeas corpus?

Question 5: If the answer to Question 2 is 'yes', can it be said that "the ground for the making of an order nisi requires an applicant to demonstrate reasonable justification or probable cause, after which, in turn, the detainer must justify the detention by proving that it is lawful"?

Question 6: Can it be said that, in an application for a writ of habeas corpus seeking to challenge the lawfulness of detention under s 189(1), in the alternative to showing some basis on which a court could conclude that the detaining officer did not reasonably suspect that the detained person is an unlawful non-citizen, the detained person could show some basis on which a court could conclude that he or she is not an unlawful non-citizen?

Question 7: Is the threshold of the evidentiary burden of proof borne by applicants for habeas corpus higher than that borne by applicants for false imprisonment, in that the former requires the applicant to demonstrate that there is a “case fit to be considered”, whereas the latter only requires demonstration of the fact of imprisonment?

Question 8: Do both causes of action (habeas corpus and false imprisonment) have the same ultimate burden of proof for the detainer?

Question 9: Must an applicant for a writ of habeas corpus or an order in the nature of habeas corpus satisfy the evidentiary burden at the time the application is heard, whereas the substantive onus that shifts to the detainer in an application for false imprisonment is to prove the lawfulness of the imprisonment or detention throughout the period of the imprisonment or detention?

Question 10: If the answer to Question 9 is 'yes', does it follow that "the circumstances in which a person is detained can never be relevant to the question of whether any current detention is lawful"?

Question 11: Do ss 486L, 486M, 486N and 486O of the Migration Act 1958 (Cth) evince a legislative intention that detention beyond the end of its first two years required some justification beyond s 189(1)?

The FCAFC answered those questions as follows: