Federal Court of Australia

FJE20 v Minister for Home Affairs [2022] FCAFC 45

ORDERS

THE COURT ORDERS THAT:

1.    The Federal Circuit Court of Australia be removed as the fourth respondent.

2.    The application filed on 17 September 2021 for an extension of time to seek leave to appeal be granted.

3.    Leave to appeal in terms of the draft notice of appeal at annexure DRT1 to the affidavit of Daniel Robert Taylor affirmed on 17 September 2021 be granted.

4.    The appeal be allowed.

5.    Order 1 of the Federal Circuit Court dated 31 August 2021 be set aside.

6.    The proceedings be stood over to a date to be fixed for the making of any necessary further orders.

7.    The parties file written submissions as to any necessary further orders, including as to the further conduct of the proceeding consequent upon these reasons for judgment by 31 March 2022.

8.    The costs of the hearing on 1 March 2022 be reserved.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

The court:

Introduction

1    This is an application for an extension of time, leave to appeal concerning, and should leave be granted an appeal against, a judgment of the Federal Circuit Court (FCC) in which the primary judge held that the FCC lacked jurisdiction to deal with the appellant’s application for relief as proposed in a third further amended application. The primary judge held further that the FCC had neither “accrued” nor “associated” jurisdiction, within the meaning in ss 14 and 18 respectively of the (now repealed) Federal Circuit Court of Australia Act 1999 (Cth) (FCC Act). Whilst the FCC was reconstituted as the Federal Circuit and Family Court of Australia (Division 2) (FCFC (Div 2)) effective 1 September 2021, for convenience, and because this application concerns the jurisdiction of the FCC as it then was, these reasons will generally refer to the FCC throughout.

2    The critical issue for this Court’s determination is whether the primary judge characterised correctly the nature of the relief sought in the third further amended application and so was correct to find that “[t]here being no claim for substantive relief other than the claim for damages in negligence, the Court does not have jurisdiction, accrued or otherwise, to hear the claim” (Reasons at [53]).

3    The question of whether the FCC has jurisdiction arises as a consequence of the operation of ss 476 and 476A of the Migration Act 1958 (Cth) by which the Parliament has bifurcated the judicial review of decisions made under that Act as between the FCC and the Federal Court. The consequence of such bifurcation is apt to lead to complexity and to arguments about the “indivisibility” of proceedings. There is no doubt that the subject matter for decision by a federal court may embrace the whole controversy between the parties, or only part of that controversy according to the terms of conferral by statute: Abebe v Commonwealth [1999] HCA 14; 197 CLR 510 at [49] per Gleeson CJ and McHugh J. In Stack v Coast Securities (No 9) Pty Ltd [1983] HCA 36; 154 CLR 261, Gibbs CJ said, at 281:

Under the Constitution, the jurisdiction of a federal court can be defined only by an Act of Parliament, and the jurisdiction so defined can be as wide as, or narrower than, (but not of course wider than) the matters mentioned in ss. 75 and 76.

4    In the context of migration decisions, original jurisdiction has been conferred on the FCC; the Federal Court’s jurisdiction is restricted to circumstances, “if, and only if” they meet one or more of the conditions in sub-paragraphs (a)-(d) of s 476A.

5    In the course of the hearing of the application, it became apparent that the determination of whether the primary judge was correct to find that the FCC had neither “accrued” nor “associated” jurisdiction, in particular the latter under s 18 of the FCC Act, raised potential issues concerning the construction of s 75 of the Constitution and the meaning of “matter” as used both in the Constitution and in ss 14 and 18 of the FCC Act with the consequence that it may be necessary to issue s 78B notices to the Attorneys-General pursuant to the Judiciary Act 1903 (Cth).

6    For that reason, the Court indicated that it would deal first with the question of whether any of the claims made by the applicant are claims in the nature of direct judicial review. If that were the case, the FCC had jurisdiction, at least to hear such claims on application. The parties were invited to provide additional written submissions on that issue alone and have done so. The resolution of that question is largely determinative of whether the matter could be transferred to the Federal Court and avoids the additional costs associated with dealing with the constitutional issues. As will be discussed below, there is no dispute that the Federal Court has jurisdiction to determine the tortious claim, at least by the terms of s 476 alone.

7    Before turning to consider the requirement for leave to appeal and an extension of time, it is important to note that the FCC was named as the fourth respondent on the applicant’s application to this Court. At the time the application was filed, the FCC had been reconstituted as the FCFC (Div 2). In any event, the FCC is not a proper party to the proceeding in this Court, and therefore an order will be made removing the FCC as the fourth respondent. Any reference to the “respondents” hereafter refers only to the first to third respondents.

8    It was not in contest that leave to appeal was required. We are prepared to approach the matter on the basis that it is. The principles that govern the grant of leave are well established. In Bienstein v Bienstein [2003] HCA 7; 195 ALR 225 at [29], McHugh, Kirby and Callinan JJ held that “[a]n applicant for leave must establish that the decision in question is attended with sufficient doubt to warrant the grant of leave. The applicant must also show that substantial injustice will result from a refusal of leave to appeal.”

9    The application for leave to appeal was filed three days after the time prescribed for such an application by r 35.13 of the Federal Court Rules 2011 (Cth). The reason for the delay is explained in the affidavit of Daniel Robert Taylor affirmed on 17 September 2021. There is nothing exceptional about the explanation. The respondents do not, however, claim to have suffered any prejudice. Nevertheless, it is necessary for this Court to consider the merits of the substantial application in considering whether an extension is to be granted. Neither an extension of time nor leave to appeal will be granted where there are no reasonable prospects of success on the appeal: Hunter Valley Developments Pty Ltd v Cohen [1984] FCA 186; 3 FCR 344 at 348-349; Parker v R [2002] FCAFC 133 at [6]; BQQ15 v Minister for Home Affairs [2019] FCAFC 218 at [33].

10    For the reasons that follow, the FCC has jurisdiction in relation to two of the applicant’s claims for relief. It is therefore appropriate to grant the application for an extension of time and for leave to appeal and the appeal must be allowed. For reasons that we will explain, and subject to any further submissions the parties may make.

The applicant’s claims

11    The applicant is a transitory person who was brought to Australia for a temporary purpose under the former s 198C of the Migration Act. On or around 12 December 2020, the applicant requested in writing to be removed to Papua New Guinea, pursuant to s 198(1) of the Migration Act. The duty in s 198(1) has not been performed, and this was one of the decisions challenged by the applicant in the FCC. On or around 1 March 2021, the applicant was granted a bridging visa and released from detention.

12    The applicant’s claim for relief is as follows (errors in the original):

1.    Injunction restraining the respondents’ officers or agents from removing the applicant from Australia pending the hearing and determination of these proceedings.

2.    Injunction restraining the respondents from relying on their administration of their removal obligations under ss 198AD(2) and 198(1) of the Act between 23 October 2019 and 1 March 2021 in relation to the applicant as having been carried out in accordance with law.

3.    Declaration that from 23 October 2019 the applicant no longer needed to be in Australia for the temporary purpose for which he had been brought to Australia.

4.    Declaration that the failure of the respondent’s to take the applicant from Australia to PNG as soon as reasonably practicable from 23 October 2019 to 1 March 2021 was in breach of s 198AD(2) Migration Act 1958 (Cth).

5.    Declaration that the respondents owed a duty of care to the applicant to limit the duration of the applicant’s detention to that required for the purpose of removal of the applicant to Papua New Guinea (PNG) as soon as reasonably practicable either from the time [the] applicant no longer needed to be in Australia for the temporary purpose for which he had been brought to Australia, or from the time of the applicant’s request for removal.

6.    Declaration that each of the respondents’ failure to establish a system for the assessment of the continued need of transitory persons to remain in Australia for the temporary purpose for which they brought to Australia under former s 198C Migration Act 1958 (Cth), or to establish a system to administer requests for return under s 198(1) of the Act, or to take steps to remove the applicant to PNG from either the end of his need to be in Australia from 23 October 2019 for the temporary purpose, or from the time of his request for removal on 12 December 2020; up to the grant of a bridging visa on 1 March 2021, was in breach of the respondents’ duty of care to limit the applicant’s detention.

7.    [deleted]

8.    Damages for breach of the duty of care, including aggravated and exemplary damages for the length and remoteness of the extended detention and the resulting mental anguish and anxiety suffered by the applicant.

9.    Interest pursuant to s 76 of the Federal Circuit Court of Australia Act 1999.

10.    An order the respondents pay the applicant’s costs.

11.    Any further or other orders that the Court thinks fit.

Jurisdiction of the FCC and the Federal Court in migration matters

13    The FCC only has such original jurisdiction as is conferred upon it by legislation. The circumstances with which this matter is concerned fall to be determined in accordance with the provisions of the FCC Act, which was repealed and replaced by the Federal Circuit and Family Court of Australia Act 2021 (Cth) (FCFC Act), and in accordance with the conferral of jurisdiction on that court with respect to migration decisions by s 476(1) of the Migration Act.

14    Section 10 of the FCC Act provided:

10    Original jurisdiction—general

(1)    The Federal Circuit Court of Australia has such original jurisdiction as is vested in it by laws made by the Parliament:

(a)     by express provision; or

(b)    by the application of section 15C of the Acts Interpretation Act 1901 to a provision that, whether expressly or by implication, authorises a civil proceeding to be instituted in the Federal Circuit Court of Australia in relation to a matter.

…

15    The FCFC Act commenced on 1 September 2021. The equivalent provision, in so far as it relates to the FCFC (Div 2), is s 131.

16    The jurisdiction of the FCC pertaining to the Migration Act was expressly provided for in an earlier version of s 476(1):

(1)    Subject to this section, the Federal Circuit Court has the same original jurisdiction in relation to migration decisions as the High Court has under paragraph 75(v) of the Constitution.

17    Section 75(v), of course, confers jurisdiction on the High Court in all matters in which a writ of mandamus or prohibition or an injunction is sought against an officer of the Commonwealth. The High Court has recently considered the term “matter” in the context of a proceeding arising under a lease between the Commonwealth and the lessees which was being prosecuted by a third-party. In Hobart International Airport Pty Ltd v Clarence City Council [2022] HCA 5, the lessees contended that the proceeding did not involve a “matter” for the purposes of Chapter III of the Constitution as there was no justiciable controversy to be quelled and the only rights, duties or liabilities to be established were the contractual rights, duties and liabilities of two contracting parties inter se between whom there was no dispute about the meaning or effect of the relevant lease. Justices Gageler and Gleeson put it this way, at [47], in a manner consistent with the reasoning of the plurality:

The central conception of a matter is of a justiciable controversy between defined persons or classes of persons about an existing legal right or legal obligation. The controversy is justiciable if it is capable of being resolved in the exercise of judicial power by an order of a court which, if made, would operate to put an end to the question in controversy through the creation of a “new charter by reference to which that question is in future to be decided as between those persons or classes of persons”.

(footnotes omitted)

18    Section 476 confers that jurisdiction in relation to migration decisions. The conferral is not of a matter generally. It is a conferral of the same original jurisdiction or authority as the High Court has under s 75(v) in relation to migration decisions.

19    In Fernando v Minister for Immigration and Citizenship [2007] FCA 1203; 165 FCR 471, Siopis J held that, in construing the phrase “in relation to migration decisions” in s 476A, at [22]:

… s 476A(1) of the [Migration Act] is to be read as if the words “an application for judicial review of”, were inserted between the words “in relation to” and “a migration decision”.

20    Section 476A, limits the original jurisdiction of the Federal Court in relation to a migration decision to circumstances that meet one or more of the conditions in sub-paragraphs (a)-(d). It provides, relevantly:

(1)    Despite any other law, including section 39B of the Judiciary Act 1903 and section 8 of the Administrative Decisions (Judicial Review) Act 1977, the Federal Court has original jurisdiction in relation to a migration decision if, and only if:

…

(b)    the decision is a privative clause decision, or a purported privative clause decision, of the Administrative Appeals Tribunal on review under s 500; or

(c)    the decision is a privative clause decision, or a purported privative clause decision, made personally by the Minister under s 501, 501A, 501B, 501BA, 501C or 501CA; or

…

21    The term “migration decision” is defined in s 5(1) of the Migration Act to mean:

(a)    a privative clause decision; or

(b)    a purported privative clause decision; or

(c)    a non-privative clause decision; or

(d)    an AAT Act migration decision.

22    A “privative clause decision” is defined by s 474(2) of the Migration Act to mean:

…a decision of an administrative character made, proposed to be made, or required to be made, as the case may be, under this Act or under a regulation or other instrument made under this Act (whether in the exercise of a discretion or not), other than a decision referred to in subsection (4) or (5) [a “non-privative clause decision”].

23    So far as is relevant to the present matter, s 474(3) provides that a reference in s 474(2) to a “decision” includes a reference to, inter alia: the granting, making, varying, suspending, cancelling, revoking or refusing to make an order or determination; doing or refusing to do any other act or thing; or a failure or refusal to make a decision.

24    The migration decisions which, in this case, are said to be sufficient to ground the jurisdiction of the FCC pursuant to s 476 are:

Date of first decision: 23 October 2019 to 1 March 2021, being a failure to take the applicant as an unauthorised arrival to whom s 198AD of the Migration Act 1958 (the Act) applied from Australia to a regional processing country as soon as reasonably practicable: s 198AD(2).

Date of second decision: 12 December 2020 to 1 March 2021, being a failure to remove the applicant as soon as reasonably practicable, the applicant then being an unlawful non-citizen who had asked the Minister in writing to be so removed: s 198(1) of the Act.

25    The phrase “in relation to a migration decision” is narrow in scope. The parameters of the respective jurisdictions of the FCC and of this Court in the context of the Migration Act are subject to a number of authorities.

26    DBE17 v Commonwealth of Australia [2019] HCA 47; 266 CLR 156 was similarly concerned with a claim for damages for false imprisonment, albeit on the basis of the Commonwealth taking longer than was reasonably necessary to receive, investigate and determine a claim for a visa. Whilst noting that, without the benefit of context and authority, “it might be supposed that a claim for damages for false imprisonment the result of the Commonwealth taking longer than is reasonably necessary to receive, investigate and determine a claim for a visa”, is one in relation to “granting, giving or refusing to give a visa” and so therefore a claim in relation to a migration decision within the meaning of s 476A(1) (at [11]), Nettle J held that the converse is the case (at [12]).

27    The High Court had previously considered the scope of the phrase in Bodruddaza v Minister for Immigration and Multicultural Affairs [2007] HCA 14; 228 CLR 651, which concerned a challenge to the validity of a former version of s 486A of the Migration Act, on the basis it imposed fixed time limits on any applications to the High Court in the exercise of its original jurisdiction “in relation to a migration decision”. In that context, the Court held that s 486A should not be construed as sufficiently broad to encompass more than applications for judicial review, taking it beyond public law remedies. Consequently, it did not limit the time in which an applicant, who claimed to have been detained without an officer holding the level of knowledge or reasonable suspicion under s 189 of the Migration Act, could seek relief under s 75(v) of the Constitution arising from a claim against the Commonwealth in tort for false imprisonment (Bodruddaza at [23]-[25] per Gleeson CJ, Gummow, Kirby, Hayne, Heydon and Crennan JJ; at [79] per Callinan J; DBE17 at [12]).

28    In DBE17, Nettle J observed, at [14]:

Logically, similar considerations apply to s 476A – and that is the view that has consistently been taken in the Federal Court since Bodruddaza was decided. …

[citing Fernando at [22] per Siopis J; Tang v Minister for Immigration and Citizenship [2013] FCAFC 139; 217 FCR 55 at [9] per Rares, Perram and Wigney JJ; Okwume v The Commonwealth [2016] FCA 1252 at [28] per Charlesworth J]

29    His Honour concluded, at [15]:

…It should be accepted that the reach of s 476A is confined to applications for public law remedies in the nature of judicial review of migration decisions and so does not deprive the Federal Court of original jurisdiction in relation to a claim in tort against the Commonwealth for false imprisonment the result of the Commonwealth allegedly taking too long in making a migration decision to grant or refuse a visa.

30    The statutory context reveals the converse to be true with respect to the limits of the jurisdiction of the FCC provided for in s 476. The jurisdiction conferred by that section is limited to remedies by way of judicial review.

31    In Tang at [9], the Full Court said:

…[W]e conclude that Div 2 of Pt 8 of the Act is confined by the use of the expression “in relation to a migration decision” to applications for direct judicial review of migration decisions and does not extend to ancillary judicial review proceedings in respect of orders made in proceedings of that kind.

32    See also Allsop CJ in McHugh v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 223; 283 FCR 602 at [15] (and see Besanko J at [74] and Mortimer J at [247]):

…the phrase “jurisdiction in relation to a migration decision” can be taken to be no wider than jurisdiction in public law remedies of direct judicial review of a migration decision. The phrase, “in relation to” has no width or flexibility in this context beyond that. It does not include what might be called collateral attack upon a migration decision: Bodruddaza 228 CLR at 662 [22], such as a claim for false imprisonment available within jurisdiction under ss 39B(1A)(c) and 75(iii) of the Constitution by s 32(1) of the Federal Court Act 1976 (Cth): PCS Operations Pty Ltd v Maritime Union of Australia [1998] HCA 29; 153 ALR 520 at 523-526 [6]-[13]. See also Commonwealth v Okwume [2018] FCAFC 69; 263 FCR 604; and DBE17 v Commonwealth [2019] HCA 47; 266 CLR 156.

33    It necessarily follows that just as the Federal Court has jurisdiction over tortious claims, the FCC does not from conferral by s 476. So much is not in dispute.

Characterisation of the relief sought

34    The primary judge held that the only substantive relief sought by the applicant is that set out in the eighth prayer for relief and is confined to a claim for damages for breach of an alleged duty of care to limit the duration of the applicant’s detention to that required for the purpose of removal of the applicant to PNG as soon as reasonably practicable (Reasons at [44]).

35    The primary judge held that the balance of the relief sought by the applicant (aside from interest and costs) can, in substance, only be sought in aid of the tortious damages claim (Reasons at [45]). Inferentially, the primary judge found that none of the remaining prayers for relief were within the scope of the jurisdiction conferred on the FCC by s 476(1) of the Migration Act. Specifically, the primary judge held (Reasons at [45]):

(a)    the injunctive relief sought by prayer 1 appears to be directed to preserving the subject matter of these proceedings, rather than based on any independent claim to final relief. In any event, the relief sought is inapt, for the applicant’s (putative) ability to recover damages is unaffected by whether or not he is removed (and is, in this respect, a step removed from an equivalent order that might be sought in application for habeas corpus);

(b)    the so-called injunctive relief sought by prayer 2 is, in substance, declaratory in nature: it is directed at a finding that, at a time when the applicant was detained, the respondents did not give effect to the obligations under ss 198AD(2) and/or 198(1);

(c)    similarly, the declaratory relief sought by prayers 3 and 4 is directed at a finding that, at a time when the applicant was detained, the respondents did not give effect to the duty under s 198AD(2); and

(d)    the declaratory relief sought by prayers 5 and 6 is expressly framed as tortious relief; namely, a putative duty to limit the duration of the applicant’s detention (prayer 5) and an alleged breach of that duty (prayer 6).

36    The chronology of these proceedings is of some import. The original application was brought on 26 December 2020 and has been amended twice. The original application had identified the relevant migration decision as:

1.    Holding the applicant in detention, being an ‘act’ or ‘the doing of a thing’ for the purposes of s.474(3)(g) of the Migration Act 1958;

2.    Failure to remove, or to take any reasonable steps toward removal of the applicant to the relevant regional processing country.

37    The application sought a declaration that the detention of the applicant was not authorised by the Migration Act or any other power and was therefore unlawful and an order that the applicant be released from detention forthwith.

38    On 1 March 2021, the applicant was released from detention because he had been granted a bridging visa under s 195A of the Migration Act.

39    At a directions hearing on 29 March 2021, the applicant was directed to file and serve an amended application (Reasons at [3]), which was duly done on 30 April 2021.

40    By that application, the substantive relief sought by the applicant was framed as “[d]amages for false imprisonment, including aggravated and exemplary damages for the length and remoteness of the false imprisonment and the resulting mental anguish and anxiety suffered by the applicant”. The applicant sought also:

1.    A writ of prohibition preventing the respondents and their agents and officers from detaining the applicant upon the expiration of the applicant’s bridging visa.

2.    Declaration that from 23 October 2019 the applicant no longer needed to be in Australia for the temporary purpose for which he had been brought to Australia.

3.    Declaration that the applicant was illegally detained within the period from the date of his arrival and detention in Australia on 25 June 2019 to his release from detention on 1 March 2021, being from 23 October 2019 to 28 February 2021.

41    The relief sought in prayer 3 was premised on an application for direct judicial review of the “migration decision” to detain the applicant between 23 October 2019 to 28 February 2021 on the ground that his detention was not authorised by law as he was detained otherwise than for the purpose of removal as soon as reasonably practicable under s 198(1A) of the Migration Act (Migration Act s 474(3)(e)). The relief sought in prayer 2, similarly, was premised on an application for direct judicial review of the “migration decision” not to undertake or carry into effect the removal duty in s 198AD, read with s 198AH by failing to take any steps to remove the applicant from 23 October 2019 to 28 February 2021 (Migration Act s 474(3)(g)), which detention was said to be “not authorised by law”. A declaration equivalent to that sought by prayer 2 was granted by a Full Court of this Court in AOU21 v Minister for Home Affairs [2021] FCAFC 60.

42    Subsequent to the filing of the amended application, the High Court delivered its decision in Commonwealth of Australia v AJL20 [2021] HCA 21; 391 ALR 562 on 23 June 2021. That decision set aside the orders of a single judge of this Court, which had granted relief of the kind sought by the applicant. The High Court held that any failure of the respondent to comply with its statutory duties under s 198AD(2) or 198(1) does not render detention unlawful. The majority (Kiefel CJ, Gageler, Keane and Steward JJ) held, at [46]:

…There is likewise no constitutional need to read the words “until … he or she is removed from Australia” as referring “not to the fact of removal but to the time and effort necessary, as a matter of reasonable practicability, to effectuate the purpose of detention” such that the period of detention authorised under s 196 ceases to be authorised when removal should have occurred had officers of the Executive acted with all reasonable despatch.

43    Nevertheless, as observed by the majority at [53], the duty imposed by s 198(6) remained enforceable at all times during the period in which the relevant officers were failing to perform their duty to remove the applicant from Australia and they were amenable to mandamus to require them to perform their duty. The majority concluded, at [72]-[73]:

72    It is enough for the duty to detain imposed by s 189(1) to be sustained in accordance with s 196(1)(a) until completion of the performance of the duty to remove imposed by s 198 that the officer keeping or causing the person to be kept in immigration detention knows or reasonably suspects that the person is an unlawful non-citizen. Provided the requisite knowledge or suspicion continues to exist throughout the period of detention, an unauthorised or prohibited purpose on the part of the officer in prolonging the period of detention can affect neither the duty to detain nor the duty to remove nor the appropriate remedy for non- performance of the duty to remove.

Conclusion

73    The conclusion that officers of the Executive have not discharged their statutory duty to remove the respondent from Australia as soon as reasonably practicable affords a basis for orders requiring that they do their duty…

44    The applicant could therefore no longer maintain his claim in respect of the claimed illegality of detention said to arise from the migration decisions made under s 198AD(2) and 198(1), nor could the applicant claim damages for false imprisonment by reason of the Executive’s failure to comply with its statutory duties under those provisions because that failure had not rendered the applicant’s detention unlawful. The claimed public law relief of prohibition to prevent his further detention was, in any event, contrary to those authorities endorsing the validity of the Executive’s authority and duty to detain an unlawful non-citizen pursuant to s 189(1): Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs [1992] HCA 64; 176 CLR 1; Al-Kateb v Godwin [2004] HCA 37; 219 CLR 562; Plaintiff S4/2014 v Minister for Immigration and Border Protection [2014] HCA 34; 253 CLR 219.

45    Nevertheless, and at the date of the amended application, that application was framed as one for direct judicial review of the “migration decisions” identified in prayers 2 and 3 such that the FCC had jurisdiction under s 476 to hear and determine those claims for relief, even if they were wrong in law and bound to fail.

46    The various iterations of the relief sought, as would be expected, reflect the applicant’s changing circumstances. The first application sought a declaration that the applicant’s detention was unlawful and an order in the nature of habeas corpus. The second sought, inter alia, declarations that the applicant no longer needed to be in Australia from 23 October 2019 and that he had been illegally detained in the past, both underpinning a claim that he should be removed back to PNG, and a claim for damages for false imprisonment.

47    The relief sought by the applicant in the third further amended application, being the one considered by the FCC in the judgment under appeal, was again reframed. The relief sought by prayer 2 of the third amended application was expressed as injunctive relief, and appeared to seek to restrain the respondents from relying on their previous conduct after the applicant had asked to be removed. The relief in prayers 3 and 4 is, in substance, the same relief as was sought in the amended application: a declaration that the applicant no longer needed to be in Australia for the temporary purpose for which he had been brought to Australia; and a declaration that that the respondents had breached s 198AD(2) by failing to remove the applicant from Australia as soon as reasonably practicable. The grounds for the relief sought, however, differ from those in the amended application in that they no longer relied on the tort of false imprisonment. In the third further amended application, and in reliance in part on the declaratory relief sought, the applicant purports to set up the claim for common law damages for negligence.

48    It should be noted at this juncture that there was no contest that the FCC has the power to grant declaratory relief (FCC Act s 16) nor that the power was circumscribed in this context because of the omission of declaratory relief from the specific public law remedies mentioned in s 75(v) of the Constitution (see McHugh at [3] per Allsop CJ, [232]-[234] per Mortimer J; Mokhlis v Minister for Home Affairs [2020] HCA 30; 382 ALR 1 at [13]-[14]). There was no complaint about standing. There was no complaint that the relief sought was colourable (Apache Northwest Pty Ltd v Newcrest Mining Ltd [2009] FCAFC 39; 182 FCR 124 at [71]).

49    In submissions in reply to the respondents’ supplementary note, the applicant conceded that prayer 1 cannot be characterised as remedy flowing from direct judicial review of the two nominated decisions but maintained that the relief sought at prayers 2 – 4 is by way of direct judicial review in relation to the two nominated decisions.

50    The applicant’s contentions in relation to prayer 2 cannot be sustained. Prayer 2 does not articulate any basis for judicial review of either decision (Fernando at [22]; McHugh at [15]). The injunction sought by prayer 2 is directed at restraining the respondents from maintaining a particular legal position. It does not seek to “directly” review the relevant migration decision, being the failure to take the applicant to a regional processing country as soon as reasonably practicable. Once it is appreciated that prayer 2 is not premised on an application for direct judicial review of a migration decision, the jurisdiction of the FCC in relation to those particular claims under s 476 falls away.

51    In Moorgate Tobacco Co Ltd v Philip Morris Ltd [1980] HCA 32; 145 CLR 457, the High Court dealt with the question of whether non-federal claims raised in Supreme Court proceedings (being claims in contract, trust or fiduciary obligations, and the tort of unfair competition) were distinct from or unrelated to the claims under federal jurisdiction (under the Trade Marks Act 1955 (Cth)) and so were severable from them. As the Supreme Court was invested with federal jurisdiction by s 39(2) of the Judiciary Act to determine matters arising under a law made by Parliament (Constitution s 76(ii)) there was no dispute that if in the proceedings there arose an issue as to the existence or non-existence of a right created by the Trade Marks Act, the Supreme Court was exercising federal jurisdiction as to the whole of the matter. The dispute was as to when a matter (that is, the whole of the matter) “arises” within the meaning of s 76(ii) so as to attract the exercise of federal jurisdiction. The Court held, at 476, per Stephen, Mason, Aickin, and Wilson JJ:

The cases establish that federal jurisdiction is attracted if the right or duty based in a federal statute is directly asserted by the plaintiff or defendant, but not if the federal question arises only in some incidental fashion. So too federal jurisdiction is attracted if the court finds it necessary to decide whether or not a right or duty based in federal law exists, even if that matter has not been pleaded by the parties. But the converse is not true. If a federal matter is raised on the pleadings federal jurisdiction is exercised, notwithstanding that the court finds it unnecessary to decide the federal question because the case can be disposed of on other grounds.

52    The relief sought by prayers 3 and 4 purport to seek relief in the nature of direct judicial review by directly challenging the impugned decisions. Prayer 3 seeks a declaration that the applicant no longer needed to be in Australia from a particular date, being a declaration as to one of the objective requirements specified in s 198AH(1) which ground the duty in s 198AD (AOU21 at [145] per Griffiths, Mortimer and Perry JJ). Similarly, prayer 4 is directed specifically to the “decision”, being the failure to take the applicant to a regional processing country as soon as reasonably practicable as was the respondents’ duty under s 198AD(2) of the Migration Act.

53    The respondents submitted that the relief sought was hopeless, inutile and hypothetical. That a claim made within jurisdiction is weak or even hopeless only means that it will be dismissed within jurisdiction.

54    The respondents’ claims of inutility or hypotheticality sought to engage the notion expressed by Gaudron J in Truth About Motorways Pty Ltd v Macquarie Infrastructure Investment Management Ltd [2000] HCA 11; 200 CLR 591 at [49]:

Absent the availability of any relief related to the wrong which the plaintiff alleges, no immediate right, duty or liability is established by the Court’s determination. Similarly, if there is no available remedy, there is no administration of the relevant law.

55    Her Honour referred to the long-held authority of In re Judiciary and Navigation Acts [1921] HCA 20; 29 CLR 257 at 265-266, in which the High Court held:

…there can be no matter within the meaning of the section [s 76] unless there is some immediate right, duty or liability to be established by the determination of the Court. If the matter exists, the Legislature may no doubt prescribe the means by which the determination of the Court is to be obtained, and for that purpose may, we think, adopt any existing method of legal procedure or invent a new one. But it cannot authorize this Court to make a declaration of the law divorced from any attempt to administer that law.

56    Similarly, having referred to In re Judiciary and Navigation Acts, Gleeson CJ and McHugh J said in Abebe, at [32]:

The existence of a “matter”, therefore, cannot be separated from the existence of a remedy to enforce the substantive right, duty or liability. That does not mean that there can be no “matter” unless the existence of a right, duty or liability is established. It is sufficient that the moving party claims that he or she has a legal remedy in the court where the proceedings have been commenced to enforce the right, duty or liability in question. It does mean, however, that there must be a remedy enforceable in a court of justice, that it must be enforceable in the court in which the proceedings are commenced and that the person claiming the remedy must have sufficient interest in enforcing the right, duty or liability to make the controversy justiciable.

57    Prayers 3 and 4 are not inutile or hypothetical. They were claims for available relief in the nature of direct judicial review that had a purpose, prior to the delivery of AJL20 in the High Court, underpinning a claim for false imprisonment. The claims in that form and in that context were within jurisdiction. They are now made, but for a different purpose, as underpinning and informing a claim for damages for negligence. Whether or not the relief will be granted for that purpose and in that context will be a debate had within jurisdiction. The FCC had jurisdiction to hear those prayers for direct judicial review before the High Court delivered AJL20, it has jurisdiction afterwards.

58    Abebe stands for the proposition that a federal court may be conferred with jurisdiction to hear part of a whole matter. In s 476, the Parliament conferred limited (and by s 476A, exclusive of the Federal Court) original jurisdiction upon the FCC to hear applications by way of direct judicial review. Prayers 3 and 4 are of that character. They support and inform a wider claim which may or may not be available in the FCC by reason of ss 14 or 18 of the FCC Act. They would be available to be heard by a court conferred or invested with jurisdiction to hear any matter arising under a law of the Parliament (s 76(ii) of the Constitution).

59    None of the above makes the application for direct judicial review of a migration decision hypothetical in the FCC. There is the relevant part of the matter to be heard and determined there: a real claim for such direct judicial review. The splitting of the whole matter by Parliament may lead to unwieldiness of venue for different parts of the matter. Nevertheless the claims for direct judicial review are present in the FCC. The relief can be granted or dismissed on its merits, within jurisdiction. The results of such applications will take their place in the resolution of the wider controversy or matter in whichever court has jurisdiction to hear the balance of the whole matter.

Disposition

60    We are satisfied the FCC had, and has, jurisdiction in relation to claims in each of the iterations of the appellant’s application to that Court. To the extent we have explained, the applications contained claims for “direct judicial review” (Tang at [9]) of a “migration decision” as defined by s 5(1) of the Migration Act, being the two decisions identified in the third further amended application. The FCC has jurisdiction in relation to those migration decisions pursuant to s 476 of the Migration Act.

61    For these reasons, both the application for an extension of time to seek leave to appeal and the application for leave to appeal should be granted and the appeal must be allowed. Order 1 made on 31 August 2021 should be set aside. We will hear the parties as to any other further orders.

62    There remains the question of whether ss 14 or 18 (in particular s 18) of the FCC Act are engaged as to confer or whether any other principle operates to confer the FCC with jurisdiction to entertain the applicant’s common law claim for damages for negligence. Given the overarching duties of the Court and the parties imposed by ss 37M and 37N of the Federal Court of Australia Act 1976 (Cth), on one view it may not be an efficient use of judicial and administrative resources, nor facilitate the just resolution of the dispute as quickly, inexpensively, and efficiently as possible, for this matter to be prolonged by questions of constitutional interpretation and/or the breadth and scope of the FCC’s accrued or associated jurisdiction when the proceeding can be transferred to the Federal Court to be fully resolved. That said, this application is said to determine at least 58 other proceedings, and the question of the operation of s 18 (and thus s 134 of the FCFC Act) in circumstances where the conferral upon the FCC is only part of a matter is of importance more widely. We propose to provide the parties with an opportunity to consider these reasons and put submissions as to the form of further orders, including whether the proceeding should be transferred from the FCC to the Federal Court.

Associate:

Dated:    24 March 2022