RE AKW22; EX PARTE AKW22 [2026] WASC 298

[2026] WASC 298 Page 1 JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA IN CIVIL CITATION : RE AKW22; EX PARTE AKW22 [No 2] [2026] WASC 298 CORAM : BYDDER J HEARD : 23 JULY 2026 DELIVERED : 23 JULY 2026 FILE NO/S : CIV 1303 of 2026 EX PARTE AKW22 Applicant Catchwords: Administrative law - Application for writ of habeas corpus - Applicant not detained - Writ of habeas corpus cannot be issued Legislation: Migration Act 1958 (Cth) s 189(1) Result: Application for writ of habeas corpus dismissed Category: B -- 1 of 10 -- [2026] WASC 298 Page 2 Representation: Counsel: Applicant : Mr J Cameron Solicitors: Applicant : John Cameron Case(s) referred to in decision(s): AKW22 v Commonwealth of Australia [2024] FCAFC 22 Australian Securities and Investments Commission v White [1998] FCA 1538 Barnardo v Ford [1892] AC 326 Noem v Abrego Garcia 604 US ____ (2025) (No 24A949, 10 April 2025) Plaintiff M68/2015 v Minister for Immigration and Border Protection [2016] HCA 1; (2016) 257 CLR 42 R v Secretary of State for Home Affairs; Ex parte O'Brien [1923] 2 KB 261 Rahmatullah v Secretary of State for Defence [2012] UKSC 48; [2013] 1 AC 614 Re AKW22; Ex parte AKW22 [2026] WASC 251 Re Stanbridge's Application (1996) 70 ALJR 640 Secretary of State for Home Affairs v O'Brien [1923] AC 603 -- 2 of 10 -- [2026] WASC 298 BYDDER J Page 3 BYDDER J: (These reasons were delivered extemporaneously and have been edited from the transcript to include citations and to correct matters of grammar and infelicity of expression.) Introduction 1 The applicant moves this court for a writ of habeas corpus ad subjiciendum (habeas corpus) on the ground that the detention and removal of the applicant without judicial warrant is and was prima facie unlawful. The details of that application and the evidence led in support of it are set out in Re AKW22; Ex parte AKW22.1 It is unnecessary for me to repeat them here. 2 The applicant accepts that he bears an evidentiary onus before habeas corpus can issue. One aspect of that evidentiary onus is to satisfy this court that he is detained by the respondent.2 3 The applicant deposes to the fact that he was removed from Australia to India on 14 August 2023.3 As his counsel accepts, the applicant has been at liberty in India since that time.4 The applicant nevertheless submits that he is in constructive detention, on the basis that he was unlawfully removed from Australia while other applications for habeas corpus had been made but were not yet determined and that he therefore remains constructively detained under s 189(1) of the Migration Act 1958 (Cth). 4 The applicant's submission must be rejected. It is inconsistent with high authority, including a decision of the Full Court of the Federal Court of Australia directly applicable to him. 5 It is convenient to begin with the decision of the House of Lords in Barnardo v Ford (Barnardo).5 In that case, Dr Barnardo was the founder and director of certain homes for destitute children. He agreed to a request to receive a boy who had been found destitute and homeless and the boy became a resident of one of Dr Barnardo's homes. An official of the homes wrote to the boy's mother, Ms Ford, who replied in writing to the effect that she wished for her son to remain in Dr Barnardo's home. 1 Re AKW22; Ex parte AKW22 [2026] WASC 251 [1] - [6]. 2 Applicant's memorandum of counsel filed 27 March 2026 (AS) [6]. 3 Affidavit of the applicant sworn 25 February 2026 [2]. 4 AS [16]. 5 Barnardo v Ford [1892] AC 326. -- 3 of 10 -- [2026] WASC 298 BYDDER J Page 4 6 Some seven weeks later another person wrote to Dr Barnardo's homes stating that Ms Ford wished for her son to go to a different institution and that institution was prepared to receive her son. Dr Barnardo did not consent to the boy's transfer to the different institution. He received a reply to the effect that unless Ms Ford's wishes were complied with, a writ of habeas corpus would be taken out against Dr Barnardo. 7 Another official of Dr Barnardo's homes then wrote to say that it was not possible for Dr Barnardo to comply with Ms Ford's request as her son was not and had not been resident in or under the control of Dr Barnardo's homes for a considerable time. A rule nisi was ultimately granted for a writ of habeas corpus by the Divisional Court of the Queen's Bench. After hearing argument, the order for the issue of the writ was made absolute by the Queen's Bench Division and the order was affirmed by the Court of Appeal. An appeal was brought to the House of Lords. 8 After determining that an appeal could lie from the decision of a court to grant habeas corpus, the House of Lords dismissed the appeal from the Court of Appeal. Importantly for present purposes, it is clear from the speeches of their Lordships that a writ of habeas corpus is only available to a person when that person is in actual detention. The Lord Chancellor, Lord Halsbury, said:6 I cannot acquiesce in the view that some of the learned judges below seem to have entertained, that if a Court is satisfied that illegal detention has ceased before application for the writ has been made, nevertheless the writ might issue in order to vindicate the authority of the Court against a person who has once, though not at the time of the issue of the writ, unlawfully detained another or wrongfully parted with the custody of another. My Lords, this is a view that I cannot agree to. I think, under such circumstances, the writ ought not to issue at all, as it is not the appropriate procedure for punishing such conduct. Of course, where a counterfeited release has taken place, and a pretended ignorance of the place of custody or of the identity of the custodian is insisted on, a Court may and ought to examine into the facts by the writ of habeas corpus, because the detention is in fact being continued by someone who is really the agent of the original wrong-doer to continue and persist in the unlawful detention. But, assume the fact that the detention has ceased, then the writ of habeas corpus is, in my judgment, inapplicable. 6 Barnardo (333) (emphasis added). -- 4 of 10 -- [2026] WASC 298 BYDDER J Page 5 9 Lord Watson said:7 I wish to make it clear that my reasons for agreeing with the judgment moved are not quite the same with those by which some of the learned judges in the Court below were influenced. The remedy of habeas corpus is, in my opinion, intended to facilitate the release of persons actually detained in unlawful custody, and was not meant to afford the means of inflicting penalties upon those persons by whom they were at some time or other illegally detained. Accordingly, the writ invariably sets forth that the individual whose release is sought, whether adult or infant, is taken and detained in the custody of the person to whom it is addressed, and rightly so, because it is the fact of detention, and nothing else, which gives the Court its jurisdiction. I find that in Reg. v. Barnardo, Tye's Case [23 QBD 315], Lindley L.J. said: 'As matter of law, I think that it is no valid excuse for not producing a child or other person in obedience to a writ of habeas corpus to state inability to obey, if such inability is the result of the previous illegal conduct of the person to whom the writ is addressed.' His Lordship added: 'Persons who illegally put a child out of their power do so at their peril, and if they are ordered to produce a child, no excuse founded on their own inability to comply with the order will be held a sufficient answer to the writ.' … I venture to doubt whether the law laid down by Lindley L.J. in these broad terms is sound. If it be so, then the writ may be used as a convenient process for punishing a gaoler who has connived at the escape of one of the prisoners under his charge. I see no difference in principle between the case of a gaoler so misconducting himself and the case of a man who unlawfully parts with the custody of an infant. To order the latter to recover the custody of the child, and to place its person at the disposal of the Court, may and probably will necessitate employment by him of agents and detectives, and application for the assistance of foreign Courts, which, in my opinion, are neither more or less than penalties imposed in respect of his breach of duty. I do not for a moment suggest that there is not a legal wrong committed in both cases; but that wrong is a very reverse of illegal detention, for which alone the writ of habeas corpus was meant to give a remedy. If there be no other remedy in such cases I am satisfied that it is for the legislature, and not for any Court, either of law or equity, to provide one; and I cannot see the propriety of the Court applying to these cases a remedy which was intended for a totally different purpose. It is, in my opinion, a grave objection to the use of habeas corpus for punitive purposes that the prosecutor would have the unusual privilege of hunting the offender from court to court until he found a tribunal willing to convict. 7 Barnardo (333 - 335) (emphasis added). -- 5 of 10 -- [2026] WASC 298 BYDDER J Page 6 Although that privilege has been conceded in all cases where there is actual detention, I can hardly conceive that the legislature would tolerate it in cases where detention has ceased. Where it is shewn to the satisfaction of the Court that the person charged with unlawfully detaining a child or adult had de facto ceased to have any custody or control, I am of opinion that the writ ought not to issue. 10 Lord Herschell, with whom Lord Hannen expressly agreed,8 said:9 Having regard to the nature of a writ of habeas corpus and the purpose for which it was designed and has hitherto been employed, I cannot feel satisfied, as at present advised, that it is not a good return to the writ that the person to whom it relates was not at the time it was issued in the custody, power, or control of the person upon whom it is served. The doctrine that he must also shew that before the writ was issued or before he had notice of the application for its issue he had not wrongfully parted with the custody of the person named in the writ is novel, and appears to me to involve great difficulty. A gaoler who has allowed a person to escape has wrongfully parted with the custody of that person; could he be commanded by a writ of habeas corpus issued after the escape to produce him and be committed for contempt of Court if he failed to do so? Other illustrations might be given to shew the difficulty of assenting to the broad proposition laid down in the Court of Appeal. The question is not whether one who has parted with the custody of a person committed to his care can be made amenable to the law if he wrongfully parts with that custody, but whether the writ of habeas corpus is the appropriate remedy. The terms of the writ require the recipient to have the body of the person named in it 'taken and detained under your custody, as is said, together with the day and cause of his being taken and detained, to undergo and receive all and singular such matters and things as the said Court shall then and there consider of concerning him in this behalf.' This indicates that the very basis of the writ is the allegation in the prima facie evidence in support of that, that the person to whom the writ is directed is unlawfully detaining another in custody. To use it as a means of compelling one who has unlawfully parted with the custody of another person to regain that custody, or of punishing him for having parted with it, strikes me at present as being a use of the writ unknown to the law and not warranted by it. 11 Lord Herschell went on to consider whether Ms Ford should have the benefit of the order absolute made by the Queen's Bench Division. His Lordship said:10 8 Barnardo (341). 9 Barnardo (338 - 339) (emphasis added). 10 Barnardo (339) (emphasis added). -- 6 of 10 -- [2026] WASC 298 BYDDER J Page 7 Where any tribunal believes that a person is or may be under detention in unlawful custody, and issues a writ of habeas corpus accordingly, no Court of Appeal ought lightly to interfere with the issue of the writ. The order for its issue ought only to be set aside if there be, beyond question, no ground for it. If, for example, in the present case it had been an admitted fact that before notice of the application for the writ the appellant had ceased to have the custody of or any control over the boy alleged to be detained that might have been ground for reversing the order of the Queen's Bench Division. But where the Court entertains a doubt whether this be the fact, it is unquestionably entitled to use the pressure of the writ to test the truth of the allegation, and to require a return to be made to it. 12 Lord Macnaghten said:11 [T]he writ of habeas corpus ought not to be wrested from its proper purpose and used as an instrument to punish a man for an illegal or unauthorized act complete before the jurisdiction of the Court can be supposed to have attached. 13 Lord Morris concurred in the judgment of the House of Lords, but dissented from the criticisms expressed by the other Lords of Appeal in Ordinary of the reasoning of the Court of Appeal.12 His Lordship was the sole dissenting voice. 14 In Secretary of State for Home Affairs v O'Brien (O'Brien),13 the House of Lords distinguished Barnardo, but only on the question of whether an appeal can be brought from the decision of a judge to grant habeas corpus. By majority, their Lordships held that an appeal did not lie from such a decision in the circumstances of the case.14 15 However, their Lordships did not doubt or disturb the principles emerging from the speeches in Barnardo that I have quoted. On the contrary, O'Brien is consistent with those principles. 16 In O'Brien, the Home Secretary caused Mr O'Brien to be arrested in London and deported to Dublin to be interned in the Irish Free State in such places as the Government of that State should direct. Mr O'Brien was interned in Mountjoy Prison by the Government of that State. The question which arose was whether the Home Secretary continued to have de facto custody or control of Mr O'Brien. This is 11 Barnardo (341). 12 Barnardo (341). 13 Secretary of State for Home Affairs v O'Brien [1923] AC 603. 14 O'Brien (607). -- 7 of 10 -- [2026] WASC 298 BYDDER J Page 8 amply illustrated by the speech of Lord Atkinson, where his Lordship said:15 What is the function of a return to a writ of habeas corpus? It is to set out the facts and the grounds of the detention to enable the Court mentioned in the writ to determine two questions, first whether the person to whom the writ is addressed, either directly by himself or by his agents, detained in custody the person named in the writ? and second, if so, was that detention legal or illegal? 17 It is to be noted that this assumes the existence of actual detention. His Lordship went on to say of the Home Secretary:16 [I]f, as was decided in Rex v. Winton [(1792) 5 T.R. 89], he could return that Art O'Brien the respondent was not in his possession or power or anything to that effect, that would have been a sufficient return to exculpate him if established. 18 The applicant relies on a number of other authorities in support of his submission that, despite being at liberty, he is detained in such a way that habeas corpus can be granted to him. Those authorities include R v Secretary of State for Home Affairs; Ex parte O'Brien (O'Brien CA),17 Rahmatullah v Secretary of State for Defence (Rahmatullah),18 Plaintiff M68/2015 v Minister for Immigration and Border Protection (Plaintiff M68/2015)19 and Noem v Abrego Garcia.20 19 In each of those cases, the person on whose behalf habeas corpus was sought was in actual detention. In O'Brien CA the person was (as I have said) detained by the Irish Free State, to whom he had been handed over by the British Government. In Rahmatullah the person was detained by the United States, to whom he had been handed over by the British Government. In Plaintiff M68/2015 the person was detained by Nauru, to whom she had been handed over by the Australian Government. In Abrego Garcia the person was detained by El Salvador, to whom he had been handed over by the United States Government. 15 O'Brien (624). 16 O'Brien (625). 17 R v Secretary of State for Home Affairs; Ex parte O'Brien [1923] 2 KB 261. 18 Rahmatullah v Secretary of State for Defence [2012] UKSC 48; [2013] 1 AC 614. 19 Plaintiff M68/2015 v Minister for Immigration and Border Protection [2016] HCA 1; (2016) 257 CLR 42. 20 Noem v Abrego Garcia 604 US ____ (2025) (No 24A949, 10 April 2025). -- 8 of 10 -- [2026] WASC 298 BYDDER J Page 9 20 It is unnecessary for me to address those authorities further, which do not support the applicant's submission that he is detained in such a way that habeas corpus could be granted. 21 Counsel for the applicant did not cite and in oral argument could not refer me to any case in which habeas corpus had been granted in respect of a person who was not in actual detention. 22 I also note that in AKW22 v Commonwealth of Australia [2024] FCAFC 22 (AKW22 2024), Sarah C Derrington, Goodman and Raper JJ said:21 The applicant is no longer in immigration detention. He is at liberty in India. Consequently, no application for a writ of habeas corpus could be entertained by the Court: Re Stanbridge's Application (1996) 70 ALJR 640 at 642; Australian Securities and Investments Commission v White (Unreported, FCA, Cooper, Sundberg and Marshall JJ, 10 November 1998). 23 I have read the two authorities cited by their Honours in AKW22 2024 this morning. Both cases, the first by Kirby J sitting alone in the High Court22 and the second by the Full Court of the Federal Court,23 support the proposition stated by the Full Court in AKW22 2024. 24 The applicant says that he was unlawfully removed from Australia while applications for habeas corpus were pending in the Federal Court of Australia. He also says that those applications remain open. It remains open to the applicant to pursue those applications in the Federal Court. 25 The applicant sought to engage the jurisdiction of this court to grant habeas corpus more than two years after his removal from Australia. By that time, he was not in detention (and indeed had been at liberty for an extended period). It is clear from the authorities to which 21 AKW22 v Commonwealth of Australia [2024] FCAFC 22 [28]. 22 Re Stanbridge's Application (1996) 70 ALJR 640, 642 (Kirby J), in which his Honour said 'This leaves the issue of the [writ] of habeas corpus. The simple answer that could be given in respect of that application is that the applicant has now served in full, with appropriate remissions, the sentence that was imposed upon him by Hilton J.' See also at (643) where Kirby J said that the applicant before his Honour could not seek the issue of a writ of habeas corpus after the expiry of the term of imprisonment. 23 Australian Securities and Investments Commission v White [1998] FCA 1538 (Cooper, Sundberg & Marshall JJ), in which their Honours said toward the end of the judgment 'As is well-known, s6 of the Habeas Corpus Act 1640 enables a person who has been imprisoned to obtain an order that he be brought before the Court so that the Court can determine whether his imprisonment is "just and legal". The section has no application to the appellant. At the time of the proceedings before Drummond J, he was not imprisoned.' -- 9 of 10 -- [2026] WASC 298 BYDDER J Page 10 I have referred that this court cannot grant habeas corpus in those circumstances. 26 The application must be dismissed. As the matter has proceeded ex parte, no question of legal costs arises and there should be no order as to costs. I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia. JS Associate to the Hon Justice Bydder 27 JULY 2026 -- 10 of 10 --