DBE17 (by his litigation guardian Marie Theresa Arthur) v Commonwealth of Australia

The High Court of Australia heard submissions in the matter of DBE17 (by his litigation guardian Marie Theresa Arthur) v Commonwealth of Australia. The central dispute concerned whether section 486B of the *Migration Act 1958* (Cth) prohibited or invalidated the plaintiff's proceeding, thereby preventing its remitter under section 88 of the *Judiciary Act 1903* (Cth). The plaintiff argued that the proceeding, founded in tort and concerning the alleged unlawful detention of individuals, did not raise an issue in connection with visas, deportation, taking, or removal of unlawful non-citizens as contemplated by section 486B(1).

The legal issues before the Court included the proper construction of section 486B of the *Migration Act 1958* (Cth) and, in particular, whether the plaintiff's proceeding, which alleged unlawful detention, fell within the scope of "migration proceedings" as defined by that section. This involved determining whether the proceeding raised an "issue in connection with visas (including if a visa is not granted or has been cancelled), deportation, or removal of unlawful non-citizens." A further issue was whether the provision was intended to limit only judicially reviewable conduct or decisions, as opposed to broader claims. The Court also considered the historical context and purpose of representative actions and the principles of statutory construction applicable to provisions that may limit access to the courts.

The plaintiff contended that the amendments introducing section 486B were part of a suite of measures aimed at limiting judicial review of migration decisions, not at precluding claims founded in tort or concerning the lawfulness of detention itself. It was argued that the text of the amending Act, including related provisions like section 486A and 486C, indicated an intention to regulate proceedings directly related to visas and removal, and that the plaintiff's claim, focused on the unlawfulness of detention due to the passage of time, was distinct from such matters. The plaintiff also drew an analogy to privative clauses, submitting that, like them, section 486B should be construed narrowly, presuming against an intention to deprive citizens of access to the courts, particularly in relation to established procedural mechanisms for representative actions that facilitate access to justice.