Federal Court. Do the words used in s 196(4) "contemplate proceedings limited to judicial review of a visa cancellation decision"? Can it be said that "s 196(1) applies to a person who is in fact an unlawful non-citizen, or that reliance on s 196(4) assumes the person is, in fact, an unlawful non-citizen"? Is s 196(2) to the effect that "s 196(1) does not prevent the release from immigration detention of a person who is, as a matter of fact, a citizen or a lawful non-citizen"?
The applicant filed an interlocutory application in the Federal Court (FCA) in which he seeks interlocutory relief to be released from immigration detention pending the resolution of his substantive application in the FCA.
The reason for being in immigration detention was the cancellation of the applicant's visa under s 501(3A) of the Migration Act 1958 (Cth).
The claim the subject of the substantive application, to be determined after the determination of the interlocutory application, is that the applicant's detainment in immigration detention is unlawful as he claims he is a citizen of Australia.
Subsection 196(4) provided as follows:
(4) Subject to paragraphs (1)(a), (b) and (c), if the person is detained as a result of the cancellation of his or her visa under section 501, 501A, 501B, 501BA or 501F, the detention is to continue unless a court finally determines that the detention is unlawful, or that the person detained is not an unlawful non-citizen.
Some of the questions to the FCA were as follows:
Question 1: Do the words used in s 196(4) concerning a court finally determining that the detention is unlawful or that the person detained is not an unlawful non-citizen "contemplate proceedings limited to judicial review of a visa cancellation decision"?
Question 2: Can it be said that "s 196(1) applies to a person who is in fact an unlawful non-citizen, or that reliance on s 196(4) assumes the person is, in fact, an unlawful non-citizen"?
Question 3: Is s 196(2) to the effect that "s 196(1) does not prevent the release from immigration detention of a person who is, as a matter of fact, a citizen or a lawful non-citizen"?
The FCA answered those questions as follows: