Habeas Corpus and bail still available in some character cases
By Lorenzo Boccabella, Barrister-at-law, specialist in migration law
17 September 2021
The minister seems to be using his personal power more often under s501A(2) to then overturn favourable decisions of the AAT setting aside a visa cancellation.
However what is sometimes not appreciated is that habeas corpus is still available in such cases.
That is because the if the Minister’s decision is wrong, it automatically revives the visa.
This opens the question of bail as ancillary relief to habeas corpus.
If the minister does make a personal decision under s501A(2), there is no merit review to the AAT, of course and the only avenue of review is to the Federal Court. Section 476A of the Migration Act states:
“(2) Where the Federal Court has jurisdiction in relation to a migration decision under paragraph (1)(a), (b) or (c), that jurisdiction is the same as the jurisdiction of the High Court under paragraph 75(v) of the Constitution.”
There is no doubt that the High Court has jurisdiction to grant habeas corpus and bail can be granted as an interlocutory application.
Gleeson CJ in Al-Kateb v Godwin [2004] HCA 37; 219 CLR 562 said:
“16.it is worth remembering that an order of bail as an interlocutory step in habeas corpus proceedings is not uncommon. Indeed, a proceeding for habeas corpus was once the normal method of applying to the King's Bench for bail. In R v Secretary of State for the Home Department; Ex parte Turkoglu, Sir John Donaldson MR, with whom Croom-Johnson and Bingham LJJ agreed, said, in an immigration case, "[c]learly we could grant bail ancillary to or as part of proceedings for habeas corpus".
Although he was in the minority in that case, there is no doubt that what Gleeson CJ said about bail is correct.
Not also in all detention case the onus is on the respondent.
Of course habeas corpus is not available in cases seeking to set aside a mandatory cancellation because be under s501CA even if an applicant is successful in challenging a decision not to set aside the mandatory cancellation, the actual mandatory visa cancellation remains intact until a delegate of the minister actually exercises the power to set the cancellation aside.
Not so under s501A(2), there if the Minister’s decision is set aside, it restores the AAT decision that AAT decision, would have restored the visa. Thus if the Minister’s decision is set aside then the visa is restored without the need for any further procedure.