Agh21 v Minister for Home Affairs - [2021] FCA 452

FEDERAL COURT OF AUSTRALIA
AGH21 v Minister for Home Affairs [2021] FCA 452

File number: NSD 57 of 2021

Judgment of: FLICK J

Date of judgment: 5 May 2021

Catchwords:
ADMINISTRATIVE LAW – application for mandamus – failure to identify any public duty

MIGRATION – application to be returned to Papua New Guinea – applicant granted bridging visa

PRACTICE AND PROCEDURE – query as to power to grant mandamus on an interlocutory application

Legislation: Migration Act 1958 (Cth) ss 198, 198AD

Cases cited:
Plaintiff M61/ 2010E v The Commonwealth [2010] HCA 41, (2010) 243 CLR 319

R v Commonwealth Court of Conciliation and Arbitration; Ex parte Ozone Theatres (1949) 78 CLR 389

R v Victorian Licensing Court; Ex parte Beggs [1964] VR 48

Re Australian Bank Employees’ Union; Ex parte Citicorp Australia Ltd (1989) 167 CLR 513

Re Reith; Ex parte Hollier (1998) 72 ALJR 1412

The King v War Pensions Entitlement Appeal Tribunal; Ex parte Bott (1933) 50 CLR 228

Division: General Division

Registry: New South Wales

National Practice Area: Administrative and Constitutional Law and Human Rights

Number of paragraphs: 22

Date of hearing: 16 March 2021

Counsel for the Applicant: Mr J F Gormly

Solicitor for the Applicant: Sydney West Legal and Migration

Counsel for the Respondents: Mr P Herzfeld SC with Mr C Tran and Ms N Wootton

Solicitor for the Respondents: Australian Government Solicitor

ORDERS

NSD 57 of 2021

BETWEEN:
AGH21

Applicant

AND:
MINISTER FOR HOME AFFAIRS

First Respondent

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

Second Respondent

ORDER MADE BY:

FLICK J

DATE OF ORDER:

5 MAY 2021

THE COURT ORDERS THAT:
1.The application for interlocutory relief as claimed in the Amended Application for Interlocutory Relief dated 23 February 2021 is refused.
2.The question of costs is reserved.
3.The matter is listed for case management hearing on 12 May 2021 at 9:00am.

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

REASONS FOR JUDGMENT
FLICK J:

The Applicant in the present proceeding, identified by the pseudonym AGH21, is a citizen of Iran. He arrived in Australia in 2013 as an unauthorised maritime arrival and was transferred to Papua New Guinea for the regional processing of his claims for protection.
In July 2019 he was transferred to Australia for the purpose of receiving specialist medical treatment. In September 2020 he made a request for his removal from Australia.
In January 2021, he filed in this Court an Originating application for relief under section 39B of the Judiciary Act 1903. That Application sought (inter alia) a declaration that his continued detention was “not authorized by the Migration Act 1958 or any other power”. A “writ in the nature of habeas corpus” was also sought. The interlocutory relief which was there sought was an order that “the applicant be released from detention forthwith pending final determination of this matter”. On 23 February 2021, an Amended Application for Interlocutory…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Keep reading for free

Create a free CaseChat account to read Agh21 v Minister for Home Affairs and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2021] FCA 452
Decision Date: 5 May 2021

CaseChat Overview and Summary

The case of Agh21 v Minister for Home Affairs involved the applicant, Agh21, who applied for an order of mandamus to compel the Minister for Home Affairs to return him to Papua New Guinea. Agh21 was granted a bridging visa and the court was asked to decide whether mandamus was an appropriate remedy in these circumstances. The Federal Court of Australia was the court that dealt with the application.

The legal issues before the court included whether the court had the power to grant mandamus by way of interlocutory relief, and if so, whether the applicant had satisfied the court that the conditions for such relief were met. The court also considered whether it had the jurisdiction or power to grant mandamus, or whether the application should have been made to the Federal Circuit Court or the High Court.

The court found that there were several reasons why interlocutory relief should not be granted, including the fact that the applicant had not identified any public duty that was owed to him. The court also noted that there was no authority to support the grant of mandamus on an interlocutory basis. Furthermore, the court was concerned about its own jurisdiction or power to grant mandamus or whether any such application must be made to either the Federal Circuit Court or the High Court.

The court refused the application for interlocutory relief and noted that the matter would be resolved at a final hearing. The court reserved the question of costs until the final hearing and listed the matter for a case management hearing on 12 May 2021 at 9:00am.

Orders

Orders of the court

1. The application for interlocutory relief as claimed in the Amended Application for Interlocutory Relief dated 23 February 2021 is refused.

2. The question of costs is reserved.

3. The matter is listed for case management hearing on 12 May 2021 at 9:00am.

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

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

In addition to these three reasons for refusing interlocutory relief, it is sufficient for present purposes to merely note two further concerns, namely a concern as to whether:·a Court can grant mandamus by way of interlocutory relief. The Applicant was unable to cite any authority which supported the grant of that remedy on an interlocutory basis; and ·this Court has jurisdiction or power to grant mandamus or whether any such application must be made to either the Federal Circuit Court or the High Court. Left unresolved is whether this Court, even if it lacked jurisdiction or power to grant mandamus, lacked jurisdiction or power to grant some other form of relief to secure the return of the Applicant to Papua New Guinea. CONCLUSIONS The application for interlocutory relief as sought in the Amended Interlocutory Application dated 23 February 2021 is refused. There is no serious question as to the grant of mandamus ordering the Respondents to return the Applicant to Papua New Guinea. Left to be resolved at a final hearing are (for example) questions going to:·whether the detention of the Applicant was “not authorized” for any period of time and, if so, what period; ·whether the Minister failed to comply with the duty imposed on him pursuant to s 198(1) of the Migration Act (or some other like provision) and, if so, during what period of time; and ·what remedies, if any, should be granted and against which Respondent. The question of costs in respect to the present interlocutory application is reserved until the final hearing.THE ORDERS OF THE COURT ARE:1.The application for interlocutory relief as claimed in the Amended Application for Interlocutory Relief dated 23 February 2021 is refused. 2.The question of costs is reserved. 3.The matter is listed for case management hearing on 12 May 2021 at 9:00am.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

File number:	NSD 57 of 2021
Judgment of:	FLICK J
Date of judgment:	5 May 2021
Catchwords:	ADMINISTRATIVE LAW – application for mandamus – failure to identify any public duty MIGRATION – application to be returned to Papua New Guinea – applicant granted bridging visa PRACTICE AND PROCEDURE – query as to power to grant mandamus on an interlocutory application
Legislation:	Migration Act 1958 (Cth) ss 198, 198AD
Cases cited:	Plaintiff M61/ 2010E v The Commonwealth [2010] HCA 41, (2010) 243 CLR 319 R v Commonwealth Court of Conciliation and Arbitration; Ex parte Ozone Theatres (1949) 78 CLR 389 R v Victorian Licensing Court; Ex parte Beggs [1964] VR 48 Re Australian Bank Employees’ Union; Ex parte Citicorp Australia Ltd (1989) 167 CLR 513 Re Reith; Ex parte Hollier (1998) 72 ALJR 1412 The King v War Pensions Entitlement Appeal Tribunal; Ex parte Bott (1933) 50 CLR 228
Division:	General Division
Registry:	New South Wales
National Practice Area:	Administrative and Constitutional Law and Human Rights
Number of paragraphs:	22
Date of hearing:	16 March 2021
Counsel for the Applicant:	Mr J F Gormly
Solicitor for the Applicant:	Sydney West Legal and Migration
Counsel for the Respondents:	Mr P Herzfeld SC with Mr C Tran and Ms N Wootton
Solicitor for the Respondents:	Australian Government Solicitor

ORDER MADE BY:	FLICK J
DATE OF ORDER:	5 MAY 2021