Federal Court of Australia

BOE21 v Commonwealth of Australia [2024] FCA 709

ORDERS

THE COURT ORDERS THAT:

1.    The hearing listed before a Full Court of the Federal Court on 3 September 2024 be vacated.

2.    The direction of the Chief Justice under s 20(1A) of the Federal Court of Australia Act 1976 (Cth) given on 29 May 2024 in this proceeding be revoked.

3.    The proceeding be adjourned to a date to be fixed following final determination by the High Court of Australia in YBFZ v Minister for Immigration, Citizenship and Cultural Affairs & anor (S27/2024).

4.    The parties are to email the Associate to Justice Markovic within 3 days of judgment being delivered in YBFZ with a proposed date for further case management hearing.

5.    The costs of the case management hearing on 28 June 2024 be reserved.

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

ORDERS

THE COURT ORDERS THAT:

1.    Paragraphs 1 and 2 of the orders made by the Honourable Justice Markovic on 3 April 2024 be vacated.

2.    Pursuant to r 30.01 of the Federal Court Rules 2011 (Cth), the question of the applicant’s entitlement to the relief in prayer 1(a) of his amended originating application dated 22 May 2024 be heard separately and in advance of the remaining issues in the proceeding (the separate question).

3.    By 9 July 2024, the applicant is to file and serve an outline of written submissions addressing the separate question of no more than 10 pages.

4.    By 19 July 2024, the respondents are to file and serve an outline of written submissions in response of no more than 10 pages.

5.    By 23 July 2024, the applicant is to file and serve any written submissions in reply of no more than 5 pages.

6.    By 25 July 2024, the parties are to file and serve:

(a)    a Consolidated Court Book containing the relevant documents; and

(b)    a Joint Bundle of Authorities.

7.    The documents referred to in order 6 of these orders are to be prepared in accordance with Format 1 of the eBooks Practice Note (GPN-eBOOKS).

8.    The separate question be listed for hearing before the Full Court of the Federal Court together with the hearing of the separate question in DBD24 v Minister for Immigration, Citizenship and Multicultural Affairs & anor (WAD120/2024) on 2 August 2024 on an estimate of one day.

9.    The costs of the case management hearing on 28 June 2024 be reserved.

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

ORDERS

THE COURT ORDERS THAT:

1.    Pursuant to r 30.01 of the Federal Court Rules 2011 (Cth), the question of the applicant’s entitlement to the relief in prayer 1 of the amended originating application filed on 7 June 2024 be heard separately and in advance of the remaining issues in the proceeding (the separate question).

2.    There be a direction of the Chief Justice under s 20(1A) of the Federal Court of Australia Act 1976 (Cth) that the original jurisdiction of the Court in relation to the whole of this matter shall be exercised by a Full Court, with such direction to be entered on the Court’s file for this proceeding.

3.    The parties’ submissions filed on 21 June 2024 and 25 June 2024 respectively stand as their principal submissions before the Full Court.

4.    By 5 July 2024, the applicant is to file and serve any reply limited to 5 pages.

5.    By 19 July 2024, the parties are to file and serve:

(a)    any updated Statement of Agreed Facts; and/or

(b)    any further affidavit evidence confined to updating the progress of the applicant’s visa status.

6.    By 22 July 2024, the parties are to file and serve:

(a)    a Consolidated Court Book containing the relevant documents; and

(b)    a Joint Bundle of Authorities.

7.    The documents referred to in order 6 are to be prepared in accordance with Format 1 of the eBooks Practice Note (GPN-eBOOKS).

8.    The separate question be listed for hearing before the Full Court of the Federal Court together with the hearing of the separate question in CZA19 v Commonwealth of Australia & anor (VID247/2024) on 2 August 2024 on an estimate of one day.

9.    The costs of the case management hearing on 28 June 2024 be reserved.

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

REASONS FOR JUDGMENT

MORTIMER CJ:

1    On Friday 28 June 2024, the Court held a case management hearing in three proceedings:

(a)    BOE21 v Commonwealth of Australia & anor (NSD168/2024)

(b)    CZA19 v Commonwealth of Australia & anor (VID247/2024); and

(c)    DBD24 v Minister for Immigration, Citizenship and Multicultural Affairs & anor (WAD120/2024).

2    The orders made today arise out of an increasingly complex situation facing this Court as it deals with proceedings resulting from the High Court of Australia’s decision in NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs [2023] HCA 37; 97 ALJR 1005.

3    In the later decision of ASF17 v The Commonwealth [2024] HCA 19; 98 ALJR 782 at [1], the plurality summarised the ruling in NZYQ, stating there was a:

temporal limitation on the valid application of those provisions imposed by Ch III of the Constitution if and for so long as there is no real prospect of removal of the alien from Australia becoming practicable in the reasonably foreseeable future. NZYQ further held that where an alien detainee who seeks a writ of habeas corpus establishes reason to suppose that their continuing detention exceeds the constitutional limitation, the detainer bears the legal burden of establishing that the constitutional limitation is not exceeded.

(Footnotes omitted.)

4    In January 2024, this Court established a panel of Judges to deal with the habeas corpus applications made as a result of NZYQ. To date there have been 25 matters allocated to the nine Judges on that panel.

5    Initially, there were a series of cases concerning whether the circumstances of certain individuals fell within the ruling in NZYQ, including individuals whose circumstances were similar to the appellant in ASF17, described in that decision by the plurality of the High Court at [3] as being a person who:

has refused to cooperate in the undertaking of administrative processes necessary to facilitate their removal from Australia.

6    In ASF17, the High Court ruled that the constitutional limitation identified in NZYQ did not apply to such a person because (plurality at [42]):

conformably with the Lim principle, continuing detention for a non-punitive purpose that is occurring because of a voluntary decision of the detainee cannot be characterised as penal or punitive. The non-punitive statutory purpose of removing an alien detainee from Australia under s 198(1) or s 198(6) of the Act remains a non-punitive purpose that is reasonably capable of being achieved if and for so long as removal could be achieved in the reasonably foreseeable future were the detainee to decide to cooperate in the undertaking of administrative processes necessary to facilitate that removal.

7    There remain a small number of proceedings still raising arguments raised in ASF17.

8    Broadly speaking, the legal issues now arising in matters before this Court after NZYQ fall into two categories, with a potential third category being raised by one applicant at the case management hearing on 28 June 2024.

9    Those categories are:

(a)    Challenges by people who have been released on bridging visas but who have had conditions imposed on those bridging visas concerning the imposition of a curfew and their subjection to electronic monitoring by having to wear an ankle bracelet. I shall describe this as the BV conditions point.

(b)    Contentions that the High Court’s decision in NZYQ extends to individuals who are held in immigration detention and who have applied for a visa, where there has been allegedly unreasonable delay in the determination of that visa application. The alternative contention (favoured by the Commonwealth) is that the ruling in NZYQ is confined to individuals whose visa applications have been finally determined and who are held in immigration detention pending removal processes. Certainly in this Court, this debate involves a consideration of the Full Court’s decision in ASP15 v Commonwealth of Australia [2016] FCAFC 145; 248 FCR 372, and decisions which have followed or approved it. I shall describe this as the detention for visa purposes point.

10    A potential third category, raised at the case management hearing by counsel for the applicant in BOE21, is a judicial review application in respect of the curfew and monitoring conditions imposed on the bridging visas granted to some individuals. Broadly, the argument concerns whether the imposition of those conditions on a particular individual was (to use counsel’s word) “justified”. I took this to mean whether the imposition of those conditions was made without evidence, was legally unreasonable or irrational, or grounds of that nature. I shall describe this as the judicial review point.

11    There are other variations in the circumstances of some individuals – for example, in one of the cases I refer to at [27] below, the Court was informed there is a dispute whether a protection finding has been made in favour of the applicant in that proceeding, which is capable of affecting the applicability of NZYQ to that applicant.

12    The Court has attempted to coordinate the conduct of proceedings raising these two categories of issues, insofar as the positions of parties and their legal representatives has enabled this to occur.

13    In an area such this Court’s migration jurisdiction, where there is a high volume of litigation with common legal issues often raised, it may be accepted there is always a need to consider individual circumstances. Parties, and particularly applicant parties, are entitled to request the Court to take a course based on an assessment of their own circumstances. However, it may not always be possible for the Court to accommodate the hearing and disposition of a proceeding in precisely the way parties contend should occur. The Court must consider its overall caseload of relevant proceedings, and the issues they raise. It must consider how the interests of the administration of justice (which go beyond the interests of an individual litigant) are best served in the management of such proceedings.

14    In each of the three proceedings, the parties have filed a statement of agreed facts, in anticipation of their proceeding being referred to a Full Court for determination of at least one of the common legal issues raised.

15    It is appropriate to set out the material factual circumstances in each of the three proceedings directly affected by the orders made today.

BOE21

16    The applicant in BOE21 has been found to be a citizen of Somalia. Since his arrival in Australia, he has been convicted of certain criminal offences and has completed the sentences of imprisonment imposed upon him. He applied for a Protection (Class XA) (Subclass 866) visa, which was refused by a delegate of the Minister. However, the delegate made the following findings:

(a)    a “protection finding” within the meaning of s 197C(5) of the Migration Act 1958 (Cth) with respect to Somalia for the purposes of s 197C(3) of the Migration Act;

(b)    a finding that the applicant is a refugee (as defined in the Migration Act).

17    Under the post-NZYQ processes in effect by the Commonwealth, from early March 2024 the applicant in BOE21 has held a bridging visa, with his current bridging visa having the curfew and monitoring conditions imposed on it. It is an agreed fact that (at [22]):

the delegate considered that the Applicant was an “eligible non-citizen” for the purpose of reg 2.25AA of the [Migration Regulations 1994 (Cth)] on the basis that … there was no real prospect of the removal of the Applicant from Australia becoming practicable in the reasonably foreseeable future (see Regulations, reg 2.20(18)).

18    On 8 April 2024, Markovic J stated a separate question pursuant to r 30.01 of the Federal Court Rules 2011 (Cth) in BOE21. In substance, the separate question (as currently framed) concerns the BV conditions point, as framed in the applicant’s amended originating application dated 15 March 2024 as an application for relief by way of order in the nature of a writ of habeas corpus and for associated declaratory relief.

CZA19

19    The applicant in CZA19 is a citizen of Poland. He has been the subject of an extradition request from Poland, and the Commonwealth has been aware of this request since November 2022.

20    Since his arrival in Australia, the applicant in CZA19 has been convicted of certain criminal offences and was released on parole in early December 2018. On his release, he was detained under the Migration Act and had remained in immigration detention. He applied for a Protection (Class XA) (Subclass 866) visa in January 2019, which was refused by a delegate of the Minister. He brought merits review and then judicial review proceedings, which ultimately led to his merits review application being remitted to the Administrative Appeals Tribunal. In November 2022, the Tribunal decided to remit the protection visa application to the Department with a direction that the applicant meets the criteria in s 36(2)(aa) of the Migration Act.

21    Despite this direction, no decision was made on the applicant’s protection visa application, and he commenced proceedings in this Court on 27 March 2024. On 3 April 2024, Markovic J made an order that the question of the applicant’s entitlement to relief by way of a writ of habeas corpus, a writ of mandamus, and/or declaratory relief be heard separately and in advance of the other issues in the proceeding. The determination of the separate question was subsequently referred by the Chief Justice to a Full Court of this Court, with a hearing listed for 3 September 2024.

22    On 13 May 2024, the applicant was notified that the Minister’s delegate had refused the application for a protection visa; he would be released from immigration detention that day after the grant of a bridging visa. The bridging visa was subject to the curfew and monitoring conditions, amongst others.

23    The Full Court made orders granting the applicant the costs of the separate question, after the filing of submissions by the parties on that issue. At the case management hearing on 28 June 2024, the parties proposed consent orders vacating Markovic J’s separate question orders of 3 April 2024 and proposing a new separate question confined to the detention for visa purposes point, although this issue now goes to the lawfulness of the past detention of the applicant in CZA19. The applicant’s amended originating application filed on 22 May 2024 also maintains the BV conditions point, but the parties do not press the hearing of this issue at this point in time.

DBD24

24    The applicant in DBD24 is a citizen of Vietnam. Since his arrival in Australia, the applicant in DBD24 has been convicted of certain criminal offences and served the sentence of imprisonment imposed on him. On 23 June 2023, at the conclusion of his criminal sentence, the applicant was released from prison and detained under s 189 of the Migration Act. He has remained in immigration detention since that date. After his arrest in June 2021, but prior to his sentencing in January 2022, the applicant applied for a Safe Haven Enterprise (Class XE) (Subclass 790) visa, which was refused by a delegate of the Minister shortly before his sentencing. However, by a merits review decision in December 2023, the Tribunal set aside the delegate’s decision and remitted the visa application for reconsideration with a direction that the applicant satisfies s 36(2)(aa) of the Act.

25    Since that time, and to the date of these orders, there has been no decision on the applicant’s visa application.

26    On 7 June 2024, Stewart J made an order under r 30.01 of the Rules stating a separate question in DBD24. In substance, the separate question concerns the detention for visa purposes point. No direction under s 20(1A) has yet been made in DBD24, but the Court has indicated such an order is under consideration.

Other relevant proceedings

27    The orders made today indirectly affect at least another three proceedings. Those proceedings are:

(a)    Minister for Immigration, Citizenship and Multicultural Affairs & anor v GMZ18 (NSD621/2024). This is an appeal by the Minister against orders of the Federal Circuit and Family Court of Australia (Division 2) that the Minister must immediately release GMZ18 from immigration detention: GMZ18 v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 335; 380 FLR 336. There has been no decision as yet whether the appeal should be heard by a single Judge or a Full Court pursuant to s 25(1AA) of the Federal Court of Australia Act 1976 (Cth). Initial timetabling orders have been made by a Registrar of the Court, though no listing date has been set. The subject matter of this appeal appears to overlap with the detention for visa purposes point. On 2 July 2024, the parties communicated to my chambers their view that the appeal in GMZ18 is factually and materially different from CZA19 and DBD24 and would not conveniently be heard with those two proceedings. Since GMZ18 is an appeal from the FCFCOA Div 2, it can be managed in the usual way by the Court’s Migration Appeals Team.

(b)    EIX18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (WAD 317/2023), which was raised by counsel for the respondents in CZA19 and DBD24 as being relevant to the detention for visa purposes point. Counsel for the applicant in DBD24, who also appears in EIX18, then clarified that the issue in EIX18 is whether or not there is a protection finding captured by s 197C of the Migration Act. However, by email to my chambers on 2 July 2024, the solicitor for the applicant in EIX18 informed the Court that the proceeding is to be discontinued.

(c)    JPPS v Minister for Immigration, Citizenship and Multicultural Affairs & anor (NSD712/2024). This matter is currently listed for final hearing on 2 August 2024. This also appears to be a proceeding where the subject matter overlaps with the detention for visa purposes point.

28    There may be other affected proceedings also filed in this Court but not drawn to my attention. I explain at [46]-[48] below what should occur in relation to these and any other relevant matters currently filed in this Court.

Summary of issues relevant to case management

29    Thus, of these proceedings:

(a)    CZA19 and BOE21 each raise the BV conditions point, as both these applicants are now in the community on bridging visas;

(b)    CZA19 and DBD24 each raise the detention for visa purposes point, although in the case of CZA19 the argument relates to past detention;

(c)    BOE21 and DBD24 involve applications for a writ of habeas corpus;

(d)    BOE21 has been released on a bridging visa. Therefore, his case of habeas corpus depends on him persuading the Court that the two bridging visa conditions mean he is still in the custody of the Commonwealth and therefore the Commonwealth is amenable to the writ;

(e)    DBD24 also brings an application for mandamus (directed at the Minister, to determine the visa application), but that application for relief is not pressed pending the resolution of the detention for visa purposes point;

(f)    Only BOE21 raises the judicial review point (which at the moment is not pleaded and is not developed in the submissions filed on behalf of BOE21); and

(g)    BOE21 and CZA19 have referrals to a Full Court under s 20(1A) of the FCA Act.

30    One more circumstance should be outlined. The case of YBFZ v Minister for Immigration, Citizenship and Multicultural Affairs & anor (S27/2024) is proceeding by way of a Special Case stated before the High Court. In that proceeding, the plaintiff challenges the curfew and monitoring conditions attached to a bridging visa granted to him under the post-NZYQ process in the same way as those granted to the applicants in BOE21 and CZA19. The conditions are materially identical to those attached to the bridging visas of the applicants in CZA19 and BOE21.

31    The plaintiff in YBFZ contends that the powers to impose these conditions are punitive and therefore contrary to Ch III of the Constitution. The Commonwealth rejects those contentions. A hearing in YBFZ has been set down for 6 August 2024. The parties’ submissions are available for public viewing on the High Court’s website, and I have taken those submissions into account, to the extent they identify the matters likely to be raised before the High Court.

The parties’ positions at the case management hearing

32    The parties in CZA19 (where the applicant has the same senior counsel representation as in DBD24) are agreed that the BV conditions point should be held in abeyance pending the High Court’s decision in YBFZ. They seek to have the detention for visa purposes point heard by a Full Court. This is also the agreed position of the parties in DBD24. Programming orders were proposed by consent in both of these proceedings just prior to the case management hearing on 28 June 2024.

33    A different position is taken on behalf of the applicant in BOE21. His legal representatives seek to have the Full Court determine the BV conditions point as soon as practicable. The applicant’s counsel’s submissions fairly accepted that the only remaining basis for this position is because the application is for relief in the nature of habeas corpus, which on established authority should be dealt with by a court as soon as practicable. Counsel confirmed BOE21’s proceeding does not raise the detention for visa purposes point.

34    Counsel also sought programming orders that would allow the judicial review point to be raised before the Full Court. As I have said, no cause of action with grounds of judicial review is currently pleaded, nor is it the subject of the written submissions filed by BOE21. The Commonwealth opposed this course.

Decision

35    I consider the appropriate course is as follows.

36    The BV conditions point should await the outcome of the High Court’s decision in YBFZ. Both the resolution of the constitutional challenge to the power to impose such conditions, and likely any obiter observations about the nature of such powers and their lawful exercise, will inform any proceedings in this Court where arguments about those conditions are raised. In all likelihood, the decision in YBFZ will determine the outcome of many of these arguments in proceedings in this Court (and for that matter, in the FCFCOA Div 2).

37    Therefore, I reject the submissions of the legal representatives in BOE21 that this issue should be heard by a Full Court. There is insufficient justification for the use of the Court’s time and resources, and the parties’ time and resources, in examining a significant constitutional and legal issue in circumstances where that issue is to be determined by the High Court in a matter of months. The applicant in BOE21 is not in immigration detention under the Migration Act. The argument that a person subject to the impugned conditions remains in the custody of the Commonwealth by reason of the curfew condition is also a matter that will be agitated in YBFZ: see the plaintiff’s submissions at [13]-[20]; defendants’ submissions at [37]. Additionally, counsel for the applicant in BOE21 accepted at the case management hearing that further time was required for the applicant to revisit and amend his pleadings, the separate question and the agreed facts, in order to enable a Full Court to determine the judicial review point. In circumstances where the High Court will hear YBFZ in approximately one month’s time, any programming orders for BOE21 may well be overtaken by a decision in YBFZ.

38    While I accept the well-established authorities about the need for a Court to deal as promptly as practicable with a habeas corpus application, in my opinion in the present case for BOE21, where he is living in the community on a bridging visa and where YBFZ is before the High Court, the considerations in those authorities are outweighed by other matters affecting the effective and efficient administration of justice in this Court. By this I refer to not only the time and resources of the Court in the face of many competing demands from litigants, and the time and resources of the parties, but also the potential for inconsistent decisions.

39    In contrast, the detention for visa purposes point should be determined by a Full Court. While I accept that ultimately this is also an issue that may come before the High Court in the future, on presently available information there is no case before the High Court in its original jurisdiction on this issue, and no grant of special leave in any proceeding raising this issue.

40    The Commonwealth has the ability, through the removal power conferred on the Attorney-General by s 40 of the Judiciary Act 1903 (Cth), to seek the removal of a proceeding to the High Court. That process will remain available to the Commonwealth.

41    Otherwise, it is in the interests of the administration of justice and the effective case management of the NZYQ cohort of cases in this Court for this Court to determine, at a Full Court level, whether the principles in NZYQ can ever be engaged where a person is being detained for the purpose of considering whether to grant the person a visa. The correctness of the Full Court’s decision in ASP15, after NZYQ, should also be resolved. The detention for visa purposes point is likely to involve a number of ongoing cases, depending on the delays in finally determining visa applications, whether by persons whose removal from Australia might not be reasonably practicable, or by persons who have been detained and waiting for a long time for a visa decision. While the ultimate resolution of these proceedings will be fact-dependent, the issue of principle about the consequences of NZYQ can be determined in a way which will at least provide guidance in this Court.

42    Therefore, the referral in CZA19 to a Full Court should be maintained, and the matter listed before a Full Court. A similar referral should be made in DBD24, because it is the applicant in this case who remains in immigration detention because of the absence of a decision on his protection visa application. Should there be, in the immediate future, a decision on the visa application, then the applicant in DBD24 will be in the same situation as the applicant in CZA19, and will retain a claim for false imprisonment. In those circumstances, the referrals should still proceed to hearing and determination. The appropriate course as determined by the Court should not alter because of the apparent arbitrary timing of a decision on protection visa applications, and if any amendments to the relief sought are necessary, those amendments can be made.

43    These conclusions mean there is no issue of general principle in BOE21 justifying a Full Court hearing at present. What remains in that proceeding is the as yet unformulated judicial review claim. As counsel for the applicant in BOE21 fairly accepted, that judicial review challenge depends upon the validity of the bridging visa conditions. The validity will be determined by the High Court in YBFZ.

44    Therefore, the appropriate orders in BOE21 are to revoke the referral to the Full Court, and to adjourn the proceeding pending the High Court’s decision in YBFZ. In substance, in terms of timing, this will place the applicant in BOE21 in the same practical position as the applicants in CZA19 and DBD24. On the BV conditions point, their cases will also await the outcome in YBFZ. Their cases will be permitted to proceed only on an argument not made in BOE21.

45    That leaves the fate of the other proceedings which were mentioned during the case management hearing, but which were not listed. There was some overlap in legal representation on both the applicant and respondent side between counsel appearing in the three matters listed, and these other matters. However, it was not an entire overlap, and in any event, the parties in those other proceedings are entitled to be heard in the usual way. Further, there are also likely to be other proceedings affected by these rulings.

46    The appropriate course is first to provide a copy of these orders and reasons to each of the parties in any identified proceedings where similar issues are raised, and to the docket Judge. This will be done administratively.

47    Second, from this point onwards, the case management of proceedings raising either the BV conditions point or the detention for visa purposes point, or both, will be referred back to a Registrar. This will be done by me administratively, and the parties in affected proceedings will be notified. Subject to the Registrar accepting any submissions from the parties in those proceedings that suggest a different course, proceedings in this category (like BOE21) will be adjourned pending the outcome of YBFZ, and (where relevant) the Full Court’s decision in CZA19 and DBD24.

48    In my opinion, this is the fairest, most effective and efficient management of this caseload, and the one likely to ensure the greatest level of consistency in the administration of justice in proceedings where similar issues are raised. As I have explained, parties will be afforded an opportunity to explain to a Registrar why this course should not be followed in a particular proceeding, but it will be up to that Registrar, or the Chief Justice if the matter is referred to me, to determine whether any departure from this standard course is appropriate.

Listing

49    The Court canvassed the parties’ availability for a Full Court hearing both at the case management hearing and administratively after the hearing. This means the Court is in a position today to make orders listing CZA19 and DBD24 for hearing before a Full Court.

Associate:

Dated:    2 July 2024