DBE17 v Commonwealth of Australia

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FEDERAL COURT OF AUSTRALIA

DBE17 v Commonwealth of Australia [2018] FCA 1307

File number: VID 750 of 2017
Judge: MORTIMER J
Date of judgment: 27 August 2018
Catchwords: MIGRATION – claim for damages for unlawful imprisonment relating to immigration detention – proceeding commenced under Part IVA of the Federal Court of Australia Act 1976 (Cth) – application by Commonwealth for strike out of claim – statutory construction of s 494AA of the Migration Act 1958 (Cth) – whether as a result of s 494AA(1)(c) the Federal Court has no jurisdiction to hear and determine claim – consideration of term “unauthorised maritime arrival” – consideration of power of High Court to remit proceedings to Federal Court – Commonwealth’s application upheld
Legislation:

1           Constitution, ss 75(v),75(iii)

Border Protection (Validation and Enforcement Powers) Act 2001 (Cth)

Federal Court of Australia Act 1976 (Cth), Pt IVA, ss 23, 31A

Judiciary Act 1903 (Cth), ss 39B(1A)(c), 44

Migration Act 1958 (Cth), Subdiv B of Div 8 of Pt 2, Pt 7AA, ss 5AA, 5AA(1A), 13, 14, 29, 35A, 46, 46A, 46B, 189, 195A, 198A, 198B, 198AD, 494AA, 494AA(1)(c), 494AA(1)(b), 494AA(1)(e), 494AA(3), 494AA(4), 494AB, 494AB(1)(b), 494AB(1)(ca), 494AB(1)(d), 474, 476A, 476B, 484, 486B, 501, 501A, 501B, 501C, 503A

Migration Amendment (Excision from Migration Zone) Act 2001 (Cth)

Migration Amendment (Excision from Migration Zone)(Consequential Provisions) Act 2001 (Cth), s 4, Sch 1

Migration Amendment (Unauthorised Maritime Arrivals and Other Measures) Act 2013 (Cth)

Migration Legislation Amendment Act (No.1) 2001 (Cth)

Migration Legislation Amendment (Transitional Movement) Act 2002 (Cth)

Migration Legislation Amendment (Regional Processing and Other Measures) Act 2012 (Cth)

Federal Court Rules 2011 (Cth), rr 13.01, 16.21(d), 16.21(e)

High Court Rules 2004 (Cth), r 21.09

Migration Regulations 1994 (Cth), reg 2.10, Sch 1, item 1404(3)(d)(vi)

Border Protection Bill 2001 (Cth)

Charter of Human Rights and Responsibilities Act 2006 (Vic), s 24

Tribunals, Courts and Enforcement Act 2007 (UK), s 42(1)

European Convention on Human Rights, Art 6
Cases cited:

Abebe v Commonwealth [1999] HCA 14; 197 CLR 510

Al-Kateb v Godwin [2004] HCA 37; 219 CLR 562

Applicants WAIV v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1186

Attorney-General for the State of Victoria v Kay [2009] VSC 337

Benkharbouche vSecretary of State for Foreign and Commonwealth Affairs; Secretary of State for Foreign and Commonwealth Affairs and Libya v Janah [2017] UKSC 62; 3 WLR 957

Bodruddaza v Minister for Immigration and Multicultural Affairs [2007] HCA 14; 228 CLR 651

Certain Lloyd’s Underwriters v Cross [2012] HCA 56; 248 CLR 378

Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation [1981] HCA 26; 147 CLR 297

Friends of Leadbeater’s Possum Inc v VicForests [2018] FCA 178

Graham v Minister for Immigration and Border Protection [2017] HCA 33; 347 ALR 350

Momcilovic v The Queen [2011] HCA 34; 245 CLR 1

MZXOT v Minister for Immigration and Citizenship [2008] HCA 28; 233 CLR 601 (Remitter Case)

P1/2003 v Minister for Immigration & Multicultural…

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Details
Case
[2018] FCA 1307
Decision Date

CaseChat Overview and Summary

In DBE17 v Commonwealth of Australia, the Federal Court of Australia considered a claim for damages for unlawful imprisonment relating to immigration detention. The applicant, a child born in Australia to parents who had arrived by boat without a valid visa, contended that his detention in immigration detention for approximately 16 months before being granted a visa was unlawful, and he sought damages for false imprisonment. The Commonwealth of Australia applied for the strike out of the claim, arguing that the Federal Court lacked jurisdiction to hear and determine the claim due to statutory construction of section 494AA of the Migration Act 1958 (Cth).

The court had to decide whether the Federal Court had jurisdiction to hear and determine the claim, and if not, whether the High Court had jurisdiction under section 75 of the Constitution. The court considered the term “unauthorised maritime arrival” and the power of the High Court to remit proceedings to the Federal Court. The court concluded that section 494AA(1)(c) of the Migration Act deprived the Federal Court of jurisdiction to hear and determine the claim, and that only the High Court had jurisdiction.

The court observed that the Parliament could confer jurisdiction on a federal court or the courts of the various States, subject to constitutional limitations. The court must accept the limits of its jurisdiction as defined by the Parliament, and in this case, it did not have jurisdiction to entertain the application. The court found that nothing in section 494AA was intended to affect the jurisdiction of the High Court under section 75 of the Constitution. The court considered the appropriate place to bring this application was in the High Court under section 75(5). The court gave the parties an opportunity to discuss a proposed form of orders reflecting the court's reasons for judgment, and to attempt to agree on a position on costs.

The court did not rule on the Commonwealth’s alternative arguments, as it had accepted its arguments that the Court had no jurisdiction. The matters raised in the amended statement of claim were of great significance, and the court believed they should be determined in a context where the Court had jurisdiction. The court noted that the Commonwealth's concession that it did not bring an application for summary dismissal under section 31A of the Federal Court Act may well have been problematic for the resolution of the Commonwealth's alternative claims, but because of the conclusion the court had reached on jurisdiction, it did not decide those matters. If there was a further proceeding filed in the High Court, the nature of the allegations made by the applicant would be a matter for the parties in that Court.

Orders

Orders of the court

1. On or before 4 pm on 10 September 2018, the parties submit a joint proposed set of orders, including as to costs.

2. In the absence of any agreed orders, on or before 4 pm on 24 September 2018, the parties file proposed orders and submissions (not exceeding 5 pages).

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

Background

Background to the litigation

For the reasons set out below, I have found that this Court has no jurisdiction to hear the proceeding, by reason of s 494AA(1)(c) of the Migration Act 1958 (Cth). Only the High Court has jurisdiction. This conclusion means it is not appropriate to determine the Commonwealth’s alternative strike out application, which is only relevant if this Court has jurisdiction.BACKGROUND The applicant is a child, presently aged five years. He brings this proceeding by his litigation guardian, Marie Theresa Arthur. The applicant was born in September 2013 at Royal Darwin Hospital. After his birth, his parents were detained in immigration detention on Christmas Island with the applicant. Both the applicant’s parents entered Australia by boat without a valid visa, with the legal consequences that brings for them under the Migration Act. Those legal consequences include, relevantly, two descriptions of their migration status: “unlawful non-citizen” and “unauthorised maritime arrival”. When the applicant was born, by reason of other provisions in the Migration Act, he was also affixed with those two descriptions of his migration status. The third and fourth centrally relevant legal consequences for the applicant’s parents from the mode of their entry into Australia was that they were subject to mandatory detention under the Act, and they were not entitled to make a valid application for a visa, unless the Minister exercised a personal discretionary power to allow them to do so. In the case of the applicant and his parents, the Minister eventually exercised his personal discretionary power under s 195A of the Migration Act and granted visas to the applicant and his parents on 15 January 2015, thus changing their migration status to lawful non-citizens from that date. This proceeding is about whether the detention of the applicant, for a period of approximately 16 months before he was granted a visa, was lawful. The applicant contends it was not, and that he is entitled to damages for false imprisonment for that reason. He contends these same propositions apply to his parents, and to all other people who fall into the class as set out in the amended statement of claim. It was clear from the outset that the respondents (initially, named as both the Minister and the Commonwealth) had fundamental objections to a number of features of this proceeding. At the first case management hearing on 28 August 2017, adopting the practice set out in the Administrative and Constitutional Law and Human Rights National Practice Note (ACLHR-1), orders were made requiring the applicant to file an outline of case and the respondents to file an outline of their response. Both parties complied with the orders, and outlines were filed by the applicant on 18 September 2017 and by the respondent on 25 September 2017. Following a further case management hearing on 28 September 2017, the applicant was given an opportunity to file an amended statement of claim in accordance with orders of this court. The applicant filed an amended statement of claim on 20 October 2017. Amongst other changes, the amended statement of claim removed the Minister for Immigration and Border Protection, initially named as the first respondent, from the proceedings.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

I do not propose to rule on the Commonwealth’s alternative arguments, given I have accepted its arguments that this Court has no jurisdiction. The matters raised in the amended statement of claim are of great significance. The Commonwealth submits that most of the core allegations are precluded by Al-Kateb, and the applicant’s response is that there has been a considerable shift in authorities after Al-Kateb towards a greater emphasis on the purpose of detention (in Plaintiff S4/2014 v Minister for Immigration and Border Protection [2014] HCA 34; 253 CLR 219 and Plaintiff M96A/2016 v Commonwealth [2017] HCA 16; 343 ALR 362 in particular) are also contentions of considerable significance. They should be determined in a context where they must be determined, not one where the Court has found it has no jurisdiction in the proceeding as a whole.CONCLUSION In WAIV at [32], French J said:The Parliament may confer jurisdiction under Ch III of the Constitution on a federal court or the courts of the various States. Subject to constitutional limitations not relevant here, that jurisdiction may be as wide or as narrow as the Parliament defines it to be. To the extent that s 494AB withdraws from the jurisdiction otherwise conferred on this Court under s 39B of the Judiciary Act, matters described by the classes of proceedings set out in subs (1) of that section, the Court must accept the limits of its jurisdiction so defined and that in this case it does not have jurisdiction to entertain the application. I observe that nothing in the section is intended to affect the jurisdiction of the High Court under s 75 of the Constitution. Nor could it. The appropriate place to bring this application was in the High Court under s 75(5). A similar observation could be made in the current application, even though there is no direct equivalent in the High Court of a class action. The form of the proceeding is a matter for the applicant, through his litigation guardian and his legal representatives. The parties will be given an opportunity to discuss a proposed form of orders reflecting the Court’s reasons for judgment, and to attempt to agree a position on costs.

Ratio Decidendi

Legal Principle Established

The Commonwealth’s concession that it did not bring an application for summary dismissal under s 31A of the Federal Court Act may well have been problematic for the resolution of the Commonwealth’s alternative claims, but because of the conclusion I have reached on jurisdiction, I do not decide those matters. If there is a further proceeding filed in the High Court, the nature of the allegations made by the applicant will be a matter for the parties in that Court.CONSIDERATION Both parties accepted that the outcome of the Commonwealth’s interlocutory application turns on the proper construction of s 494AA(1). Section 494AA provides:494AABar on certain legal proceedings relating to unauthorised maritime arrivals(1)The following proceedings against the Commonwealth may not be instituted or continued in any court: (a)proceedings relating to an unauthorised entry by an unauthorised maritime arrival; (b)proceedings relating to the status of an unauthorised maritime arrival as an unlawful non-citizen during any part of the ineligibility period; (c)proceedings relating to the lawfulness of the detention of an unauthorised maritime arrival during the ineligibility period, being a detention based on the status of the unauthorised maritime arrival as an unlawful non-citizen; (d)proceedings relating to the exercise of powers under repealed section 198A; (e)proceedings relating to the performance or exercise of a function, duty or power under Subdivision B of Division 8 of Part 2 in relation to an unauthorised maritime arrival. (2)This section has effect despite anything else in this Act or any other law. (3)Nothing in this section is intended to affect the jurisdiction of the High Court under section 75 of the Constitution. (4)In this section: Commonwealth includes: (a) an officer of the Commonwealth; and (b) any other person acting on behalf of the Commonwealth. ineligibility period means the period from the time of the unauthorised entry until the time when the person next ceases to be an unlawful non-citizen. unauthorised entry means an entry into Australia that occurs: (a)at an excised offshore place after the excision time for that place; or (b)at any other place on or after the commencement of section 5AA. The part of s 494AA(1) which is put in issue by the Commonwealth as depriving the Court of jurisdiction in this proceeding is s 494AA(1)(c). Constructional choices about a provision which cannot be read literally present various levels of challenge to courts. Section 494AA(1) is an example, because of its clearly intended privative effect. Both parties accepted that, read with s 494AA(3), the phrase “any Court” in s 494AA(1) did not include the High Court.The Court’s jurisdiction on ordinary principles Despite s 494AA being a provision seeking to oust or exclude the jurisdiction of this Court, little attention was paid in the parties’ submissions to what is the jurisdictional foundation for this proceeding in this Court, for the purposes of s 19 of the Federal Court Act, and for the purposes of the operation of s 494AA.