ss 189 & 196: does ‘detain’ mean ‘lawfully detain’?

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

Question 1: Can it be said that "what may be sufficient to constitute the withdrawal of a request for removal [under s 198(1) of the Migration Act 1958 (Cth)] would necessarily involve a question of fact"?

Question 2: Did the Minister have to give effect to the Applicant's withdrawal of his request to be removed from Australia?

Question 3: Can it be said that departmental submissions to the Minister, who then makes a decision on the basis of those submissions, cannot be underestimated?

Question 4: Did the decision to continue the detention of the Applicant ultimately rest with the Minister and not his officers?

Question 5: Subsection 196(3) provided as follows: "To avoid doubt, subsection (1) prevents the release, even by a court, of an unlawful non-citizen from detention (otherwise than as referred to in paragraph (1)(a), (aa) or (b)) unless the non-citizen has been granted a visa". Can it be said that that the word "detain", as used in ss 189 and 196, means "lawfully detain", with the result that the making of an order compelling the performance of the "duty" imposed by s 198 is not the sole remedy for an abandonment of the lawful purposes of detention contained in s 196(1) and that therefore another available remedy would be an order for the release of a non-citizen from immigration detention?

Question 6: Does the common law principle according to which a person's freedom is a "fundamental right" apply to aliens?

Question 7: In AJL20, a single judge of the FCA found that "the applicant has, since 26 July 2019, been unlawfully detained by the Commonwealth and that an order directed to the Commonwealth should be made commanding it to release the applicant from detention forthwith". Was AJL20 plainly wrong?

Question 8: Can it be said that "the manner in which the Applicant’s claim for damages for his unlawful detention is to be approached is comparable to the manner in which damages are assessed in respect to a claim for false imprisonment"?

Question 9: Following incomplete departmental submissions to the Minister, he decided in January 2021 not to consider intervening pursuant to s 195A. Shortly after these proceedings were instituted, the Minister decided to intervene under s 195A and granted the Applicant a final departure Bridging E (subclass 050) visa and a Humanitarian Stay (subclass 449) visa in May 2021. Should the quantum of damages for the unlawful detention of the Application be assessed, inter alia, by the counter-factual that, in January 2021, "had the relevant Minister properly applied the law [and been given complete departmental submissions], the most likely scenario is that the Minister would have granted the Applicant a bridging visa soon after the withdrawal of the request for removal to Iraq or within a reasonable period thereafter", instead of only in May 2021?

Question 10: Can damages for unlawful detention "be awarded, for example, upon the basis that there is “some kind of applicable daily rate”"?

Question 11: If the FCA finds that the Applicant was unlawfully kept in immigration detention from March 2019 to May 2021, what should be the quantum of damages?

Question 12: Can it be said that, "in the absence of some reason for concern as to safety or a concern as to the necessity to handcuff a person in order to ensure his detention, the Minister should give reconsideration to any policy directive that handcuffing should be undertaken in all cases"?

Question 13: Should "those administering the Migration Act should do so in accordance with both the terms of that Act and the manner in which it is to be applied as clarified by decisions of this Court"?

Question 14: If the answer to Question 13 is "yes", does that mean "a failure to not immediately reformulate any policy subsequent to the decision in AJL20 ... [warrants a] departure from the already assessed general damages"?

The FCA answered those questions as follows: