BVZ21 v Commonwealth of Australia [2021] FCA 1598

BVZ21 v Commonwealth of Australia [2021] FCA 1598

The Commonwealth proved that since 19 June 2016 the applicant was not an Australian citizen, did not hold a valid visa, was an unlawful non-citizen, and that those responsible for her detention knew or reasonably suspected that to be so. Under ss 189 and 196 of the Migration Act 1958 (Cth), as construed in AJL20 and MZZHL, her detention was required and authorised until a s 196 terminating event occurred, and any failure to allow her to depart on the 19 June 2016 flight to Indonesia did not make the detention unlawful. Because her current detention was lawful, she was not entitled to habeas corpus.

Jurisdiction
Australia
Judgment Date
17 December 2021
Procedural Posture
Migration Proceeding Seeking Orders in the Form of Habeas Corpus and Damages for False Imprisonment and Personal Injury / Judgment on Two Separate Questions Pursuant to R 30.01 of the Federal Court Rules 2011 (cth)
Outcome
Both separate questions answered in the negative.
Legal Topics
['immigration Detention' 'unlawful Non Citizen' 'habeas Corpus' 'false Imprisonment' 'removal From Australia' 'separate Questions']
['migration Law' 'administrative and Constitutional Law and Human Rights'] ['immigration Detention' 'unlawful Non Citizen' 'habeas Corpus' 'false Imprisonment' 'removal From Australia' 'separate Questions']

Case Brief

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Procedural Posture

Migration Proceeding Seeking Orders in the Form of Habeas Corpus and Damages for False Imprisonment and Personal Injury / Judgment on Two Separate Questions Pursuant to R 30.01 of the Federal Court Rules 2011 (cth)

Legal Issues

  1. 1 ["Whether the applicant's detention by the respondent at any given time since 19 June 2016 has been unlawful." 'Whether the applicant is entitled to release from detention by way of an order in the nature of a writ of habeas corpus.']

Ratio Decidendi

The Commonwealth proved that since 19 June 2016 the applicant was not an Australian citizen, did not hold a valid visa, was an unlawful non-citizen, and that those responsible for her detention knew or reasonably suspected that to be so. Under ss 189 and 196 of the Migration Act 1958 (Cth), as construed in AJL20 and MZZHL, her detention was required and authorised until a s 196 terminating event occurred, and any failure to allow her to depart on the 19 June 2016 flight to Indonesia did not make the detention unlawful. Because her current detention was lawful, she was not entitled to habeas corpus.

Court Disposition

Both separate questions answered in the negative.

Orders

  • ["The separate questions ordered on 10 September 2021 pursuant to r 30.01 of the Federal Court Rules 2011 (Cth) be answered as follows: (a) Has the applicant's detention by the respondent at any given time since 19 June 2016 been unlawful? Answer: No. (b) Is the applicant entitled to release from detention by way of...