DBE17 v The Commonwealth of Australia

The plaintiff, DBE17, commenced a representative proceeding in the High Court of Australia seeking damages for alleged unlawful detention of Group Members under sections 189 and 196 of the *Migration Act 1958* (Cth). The plaintiff contended that detention was only lawful for the period necessary to pursue specific purposes, such as processing visa applications or effecting removal, and that such purposes were not pursued with reasonable practicability or that detention continued beyond the point where these purposes were capable of fulfilment. The plaintiff sought an order remitting the proceeding to the Federal Court of Australia pursuant to section 44(2A) of the *Judiciary Act 1903* (Cth).

The central legal issues before the Court were whether section 476B of the *Migration Act* prohibited the High Court from remitting the proceeding to the Federal Court, and whether section 486B of the *Migration Act* rendered the representative proceeding incompetent in its current form. Section 476B(1) stipulates that the High Court must not remit a matter "that relates to a migration decision" to a court other than the Federal Circuit Court. Section 486B(1) defines "migration proceedings" broadly to include proceedings that "raise an issue in connection with visas... or removal of unlawful non-citizens," and subsection (4) prohibits representative or class actions in such proceedings.

Nettle J determined that section 476B of the *Migration Act* did not prohibit the remission of this proceeding. His Honour reasoned that the plaintiff's claim for damages for false imprisonment, while arising from detention under the *Migration Act*, was not a "migration decision" for the purposes of section 476B. Furthermore, Nettle J found that section 486B, which prohibits representative actions in proceedings that "raise an issue in connection with visas... or removal of unlawful non-citizens," was limited in its application to judicial review proceedings. As the present proceeding was a claim for damages and not a judicial review, section 486B did not render it incompetent.

Consequently, Nettle J ordered that the proceeding be remitted to the Federal Court of Australia, with all steps taken in the High Court to be considered as having been taken in the Federal Court. The Registrar was directed to forward relevant documents to the Federal Court, and the costs of the proceeding in the High Court were to be costs in the cause in the Federal Court.