EZ (a pseudonym) v Commonwealth of Australia

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE
COMMON LAW DIVISION
PRACTICE COURT

S ECI 2020 04326

EZ, a pseudonym	Plaintiff
v
COMMONWEALTH OF AUSTRALIA	First Defendant
- and -
MINISTER FOR HOME AFFAIRS	Second Defendant

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JUDGE:	MOORE J
WHERE HELD:	Melbourne
DATE OF HEARING:	2 December 2020
DATE OF JUDGMENT:	21 December 2020
CASE MAY BE CITED AS:	EZ (a pseudonym) v Commonwealth of Australia
MEDIUM NEUTRAL CITATION:	[2020] VSC 871

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APPLICATION FOR A WRIT OF HABEAS CORPUS – Jurisdiction – Whether Court has jurisdiction to determine application for a writ of habeas corpus – Where plaintiff is detained due to alleged status as an unlawful non-citizen in the migration zone – Where Commonwealth law excludes federal jurisdiction in relation to a migration decision except for certain federal courts – Whether application for a writ of habeas corpus is ‘in relation to a migration decision’ – Where intermediate appellate court in another judicial hierarchy has held that an application for a writ of habeas corpus is not ‘in relation to a migration decision’ – Where intermediate appellate court decision is not plainly wrong – Court has jurisdiction to determine application for writ of habeas corpus – Supreme Court (General Civil Procedure) Rules 2015, O 57 – Migration Act 1958 (Cth), s 484 – McHugh v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 223, followed – Farah Constructions Pty Ltd v Say-Dee Pty Ltd (2007) 230 CLR 89, applied.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	M Albert	Victoria Legal Aid
For the Defendants	C Lenehan SC with C Tran	Australian Government Solicitor

HIS HONOUR:

The plaintiff, who is of South Sudanese origin, is currently detained at the Christmas Island Immigration Detention Centre, Northwest Point in the Territory of Christmas Island. He initially entered immigration detention in 2016 after his visa was cancelled.[1] Before that time and from when he entered Australia in 2003 on a refugee visa, he was a resident of Victoria.
[1]On 25 January 2016.

On 19 November 2020, the plaintiff filed a summons seeking a writ of habeas corpus ad subjiciendum under rule 57.02 of the Supreme Court (General Civil Procedure) Rules 2015. The summons came before the Practice Court on 20 November 2020. Orders were made for the filing of affidavits and written submissions on the jurisdiction of the Court to hear and determine the application. The matter was adjourned for further directions in the Practice Court on 27 November 2020.

As the Judge sitting in Practice Court, on 27 November 2020 I ordered that the hearing as to the jurisdiction of the Court to hear and determine the plaintiff’s application be listed for 2 December 2020. I decided to determine the issue of the Court’s jurisdiction separately because, in my preliminary review, the submissions filed by the parties on the question of jurisdiction raised a real question as to whether the Court’s power to issue the writ of habeas corpus could be exercised in the extant proceeding. Case management considerations, including the fact that submissions on jurisdiction had already been filed by the parties, also militated in favour of the separate and preliminary determination of jurisdiction.

The Court heard oral submissions on the question of the Court’s jurisdiction on 2 December 2020. Following delivery of the judgment of the Full Court of the Federal Court in McHugh v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (McHugh) on 11 December 2020,[2] I received written submissions about that decision from the defendants on 15 December 2020.[3]
[2]McHugh v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 223 (‘McHugh’). Considered in detail below from [51] below.
[3]The solicitors for the plaintiff briefly set out their position in relation to McHugh in an email to chambers on 11 December 2020 and did not seek an opportunity to make further submissions.

The issue and the relevant legislation

The general power of the Supreme Court of Victoria to issue the writ of habeas corpus was not in issue in the proceeding. As the High Court stated in Kirk v Industrial Court (NSW), the ‘supervisory role of the Supreme Courts exercised through the grant of prohibition, certiorari and mandamus (and habeas corpus) was, and is, a defining characteristic of those courts’.[4]
[4]Kirk v Industrial Court (NSW) (2010) 239 CLR 531, 581 [98] (‘Kirk’).

The defendants submitted, however, that the power to issue the writ existed to be exercised only in proceedings in which the Court has jurisdiction, in the sense of having authority to adjudicate the controversy between the parties. The defendants submitted that the Court does not have such authority in this proceeding. That conclusion was said to flow from the operation of s 484 of the Migration Act 1958 (Cth) (the Act) which provides as follows:[5]
[5](Emphasis added).

484Exclusive jurisdiction of High Court, Federal Court and Federal Circuit Court
(1)Only the High Court, the Federal Court and the Federal Circuit Court have jurisdiction in relation to migration decisions.
(2)To avoid doubt, subsection (1) is not intended to confer jurisdiction on the High Court, the Federal Court or the Federal Circuit Court, but to exclude other courts from jurisdiction in relation to migration decisions.
(3)To avoid doubt, despite section 67C of the Judiciary Act 1903, the Supreme Court of the Northern Territory does not have jurisdiction in relation to migration decisions.
(4)To avoid doubt, jurisdiction in relation to migration decisions is not conferred on any court under the Jurisdiction of Courts (Cross‑vesting) Act 1987.

The defendants contended that this proceeding is a proceeding ‘in relation to a migration decision’ and that, by operation of s 484(1) of the Act, this Court accordingly does not have jurisdiction in relation to it.

A ‘migration decision’ is defined in the Act to mean, amongst other things, a ‘privative clause decision’ or a ‘purported privative clause decision’.[6] A ‘privative clause decision’ is defined in s 474(2) of the Act to mean:[7]

a decision of an administrative character made, proposed to be made, or required to be made, as the case may be, under this Act or under a regulation or other instrument made under this Act (whether in the exercise of a discretion or not), other than a decision referred to in subsection (4) or (5).

Section 474(3)(g) of the Act expands the meaning of ‘decision’ to include, amongst other things, ‘doing or refusing to do any other act or thing’.

[6]Sub-sections 5(1)(a) and (b) of the Act.

[7]In short, a ‘purported privative clause decision’ is a decision which would be a privative clause decision but for the presence of a jurisdictional error: s 5E of the Act.

In this statutory framework, the defendants submitted that the act of detaining the plaintiff was the relevant ‘migration decision’. The detention of the plaintiff was carried out pursuant to s 189(1) of the Act which provides:

Detention of unlawful non-citizens

If an officer knows or reasonably suspects that a person in the migration zone (other than an excised offshore place) is an unlawful non-citizen, that officer must detain the person.

The defendant submitted that detention is the ‘doing… [of] any other act or thing’ within the meaning of s 474(3)(g) of the Act. The plaintiff’s detention was done under an Act, namely s 189(1) of the Act, and is an act of an administrative character involving the application of the law to the facts of a specific case. The defendants submitted that this proceeding is ‘in relation to’ a migration decision because it is a proceeding in which the plaintiff seeks an order requiring his release, that is an order commanding the second defendant not to detain him.

Before outlining the parties’ submissions on jurisdiction, it may be noted that, if this Court has jurisdiction in relation to the current proceeding, it arises from s 39(2) of the Judiciary Act 1903 (Cth) which invests federal jurisdiction in the courts of the States. The Judiciary Act is a law made by the Commonwealth Parliament under s 77(iii) of the Constitution. Section 484 of the Act is, however, a law made under s 77(2) of the Constitution which gives the Commonwealth Parliament power to make laws ‘defining the extent to which the jurisdiction of any federal court shall be exclusive of that which belongs to or is invested in the courts of the States’.

By way of background, counsel for the plaintiff informed the Court that the occasion for this Court to deal with an application for the issue of a writ of habeas corpus in respect of a person detained under the provisions of the Act had arisen because of the state of the authorities as to the jurisdiction of the Federal Court and the Federal Circuit Court to grant that relief. When this proceeding was commenced, the most recent decision of the Federal Court on point had held that the Federal Court did not have original jurisdiction to hear and determine an application for habeas corpus brought by a person detained under s 189(1) of the Act.[8] The Federal Circuit Court had also determined that it lacked jurisdiction to grant habeas corpus to a person in immigration detention.[9] As I will later explain, the Full Court’s judgment in McHugh on 11 December 2020 has reversed the position in respect of the Federal Court’s jurisdiction.
[8]The judgment of McHugh at first instance: McHugh v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 416 (Anderson J).
[9]EXL19 v Minister for Immigration [2020] FCCA 1255, [44]. Counsel for the defendants in this proceeding submitted that the Federal Circuit Court does have that jurisdiction and was wrong to conclude otherwise.

The plaintiff’s submissions

The plaintiff advanced three contentions as to why the Court had jurisdiction in relation to this proceeding:

(a) that s 484(1) of the Act only prohibits proceedings in the nature of judicial review and the plaintiff’s application does not seek judicial review (the first contention);

(b) that the operation of s 484(1) of the Act is confined to public law remedies which the plaintiff’s application is not (the second contention); and

(c) the proceeding is not in relation to any ‘decision’ (the third contention).

In support of the first contention that s 484 of the Act only prohibits proceedings in the nature of judicial review, the plaintiff emphasised that s 484 forms part of Pt 8 of the Act which has the heading ‘Judicial Review’. The heading of parts of an Act form part of the text of the Act for interpretative purposes.[10] The heading to Pt 8 was submitted to make it patently clear that its provisions, including s 484, concerned the subject matter of judicial review.
[10]Acts Interpretation Act 1901 (Cth), s 13(2)(d).

The plaintiff emphasised that the expression ‘in relation to a migration decision’ appears almost exclusively in Pt 8 of the Act. It serves the functions of limiting the jurisdiction of courts[11] and prescribing procedural limits, namely, the time limit for the making of migration decision judicial review applications[12] and the requirement for certification in respect of proceedings brought in relation to migration decisions.[13] The meaning of the expression is to be read consistently between these usages in Pt 8 of the Act.
[11]See ss 476A, 476B and 484.
[12]Sections 486A, 477A and 477.
[13]Sections 486I and 486K.

The plaintiff submitted that all of the above provisions were inserted into the Act as part of the amendments effected by the Migration Litigation Reform Act 2005. Various provisions of the explanatory memorandum in relation to that amending Act made clear that, consistent with the title of Pt 8, Parliament intended the amendments to be in relation to ‘applications for judicial review of migration decisions’.[14] Even in provisions outside of Pt 8, the phrase ‘in relation to a migration decision’ was intended by Parliament to only refer to applications for judicial review. Counsel referred to para 76 of the above explanatory memorandum which dealt with the definition of s 486K of the Act and which stated:

The definition of “migration litigation” makes clear that this Part only applies to applications for judicial review of migration decisions commenced in a court and does not apply to applications for review by tribunals.

[14]Explanatory Memorandum, Migration Litigation Reform Bill 2005 (Cth) 3 [iii]; 10 [40]; 13 [12]; 14 [16], [21]; 15 [26].

In support of his submissions about the provisions of the Act, the plaintiff placed extensive reliance on the recent judgment of Nettle J in DBE17 v Commonwealth of Australia which concerned the operation of s 476B(1) of the Act.[15] Section 476B(1) is in Pt 8 of the Act and relevantly provides that, subject to s 476B(3), the High Court must not remit a matter ‘that relates to a migration decision’ to any court other than the Federal Circuit Court. The plaintiffs, who had commenced a representative proceeding in the original jurisdiction of the High Court, sought damages for false imprisonment by reason of their alleged unlawful detention pursuant to ss 189 and 196 of the Act. The issue was whether s 476B precluded the High Court from remitting the proceeding to the Federal Court.
[15]DBE17 v The Commonwealth of Australia (2019) 266 CLR 156 (‘DBE17’).

In addressing the construction of s 476B, the plaintiff submitted that Nettle J’s analysis was decisively in favour of the first contention and established that the provisions of Pt 8 of the Act, including s 484, were concerned solely with proceedings for judicial review of migration decisions. Counsel for the plaintiff relied upon the following paragraphs of the judgment:[16]
[16]Ibid [11]–[18] (emphasis added).

Uninformed by context and without the benefit of authority, it might be supposed that a claim for damages for false imprisonment the result of the Commonwealth taking longer than is reasonably necessary to receive, investigate and determine a claim for a visa, or to determine whether a valid application for a visa could be made, is one in relation to granting, giving or refusing to give a visa and, so, therefore, a claim "in relation to a migration decision" within the meaning of s 476A(1) of the Migration Act.
Seen, however, in context and with the benefit of authority it is apparent that the converse is the case. Dealing first with authority, although the reach of s 476A has not previously been considered by this Court, in Bodruddaza v Minister for Immigration and Multicultural Affairs this Court considered[17] the reach of s 486A of the Migration Act, which provides, in substance, that an application to this Court for a remedy to be granted in exercise of the Court's original jurisdiction "in relation to a migration decision" must be made to the Court within a specified number of days[18] of the date of the migration decision. Despite the apparent breadth of the phrase "in relation to" in s 486A, the Court held[19] that the expression "a remedy … in relation to a migration decision" in that context is limited to remedies by way of judicial review and so does not limit the time in which an action may be brought in the original jurisdiction of this Court against the Commonwealth in tort for false imprisonment the result of an officer having detained the claimant as an unlawful non-citizen without the level of knowledge or reasonable suspicion stipulated in s 189 of the Act.
Three reasons were given for that conclusion. First, it was considered[20] possible that tortious conduct completing a cause of action in tort for false imprisonment might not take place until after the end of the period stipulated in s 486A. If so, and if s 486A applied to claims for damages in tort, it would have the effect of barring causes of action not yet accrued at the expiration of the stipulated period. The Court reasoned[21] that such a "draconian, if not irrational", legislative scheme should not be attributed to the Parliament in the absence of clear words. Secondly, as appeared from the Explanatory Memorandum on the Bill for the Migration Litigation Reform Act 2005 (Cth) ("the 2005 Act"), s 486A was one of several provisions amended by the 2005 Act with the specific objective of "impos[ing] uniform time limits for applications for judicial review of migration decisions in the [Federal Magistrates Court], the Federal Court (in the limited circumstances that migration cases will be commenced in that Court) and the High Court"[22]. That supported the conclusion that "application ... for a remedy" in s 486A(1) should be construed as meaning an application for a remedy by way of judicial review; specifically in a s 75(v) matter[23]. Thirdly, it was regarded as implicit in the text of s 486A that it is directed not to the conferral of validity upon, but rather to the denial of competency of, applications to this Court not commenced within the stipulated period.[24]
Logically, similar considerations apply to s 476A – and that is the view that has consistently been taken in the Federal Court since Bodruddaza was decided. In Fernando v Minister for Immigration and Citizenship, Siopis J held[25] that s 476A does not deny the Federal Court jurisdiction to determine a claim for damages for false imprisonment comprised of allegedly unlawful detention under the Migration Act. In Tang v Minister for Immigration and Citizenship, the Full Court of the Federal Court (Rares, Perram and Wigney JJ) held[26], citing Bodruddaza, that s 476A(1) is strictly confined to jurisdiction to determine an application for "direct judicial review" of a migration decision and, so, does not preclude the Federal Court entertaining an application for judicial review of a decision of the Federal Magistrates Court (now the Federal Circuit Court) not to grant an extension of time in which to file an application for judicial review of a migration decision. More recently still, in Okwume v The Commonwealth, Charlesworth J held[27] that s 476A does not preclude bringing a proceeding in the Federal Court for damages for false imprisonment, misfeasance in public office and negligence arising out of the making of migration decisions.
With respect, I agree with their Honours. It should be accepted that the reach of s 476A is confined to applications for public law remedies in the nature of judicial review of migration decisions and so does not deprive the Federal Court of original jurisdiction in relation to a claim in tort against the Commonwealth for false imprisonment the result of the Commonwealth allegedly taking too long in making a migration decision to grant or refuse a visa.
…
As was earlier observed, if s 476B stood alone, it might be concluded that a claim for false imprisonment the result of the Commonwealth taking longer than was reasonably necessary to receive or process a claim for a visa, or to determine whether a valid application for a visa could be made, would be one that relates to a migration decision within the meaning of the provision. Viewed, however, in the context of s 476A and the other provisions of Pt 8 of the Migration Act (ss 474‑484), it can be seen that s 476B, like the other provisions of Pt 8, is concerned solely with proceedings for judicial review of migration decisions, and for that reason does not affect the ability of this Court to remit this matter to the Federal Court.
Part 8 is headed "Judicial review". Section 474A, which defines "AAT Act migration decision", is concerned with AAT decisions which may be the subject of judicial review. … Sections 478‑482 provide for procedures which are apt for judicial review proceedings and s 484 provides that this Court and the Federal Court and Federal Circuit Court are the only courts which have jurisdiction "in relation to migration decisions". There is no reason to suppose that s 476B was intended to deal with any different or broader subject matter.

[17](2007) 228 CLR 651.

[18]At the time of the decision in Bodruddaza, "within 28 days of the actual ... notification of the decision"; now, "within 35 days of the date of the migration decision".

[19]Bodruddaza(2007) 228 CLR 651, 662 [21] (Gleeson CJ, Gummow, Kirby, Hayne, Heydon and Crennan JJ), 676 [79] (Callinan J).

[20]Bodruddaza(2007) 228 CLR 651, 662 [23] (Gleeson CJ, Gummow, Kirby, Hayne, Heydon and Crennan JJ), 676 [79] (Callinan J).

[21]Bodruddaza(2007) 228 CLR 651, 662 [23] (Gleeson CJ, Gummow, Kirby, Hayne, Heydon and Crennan JJ), 676 [79] (Callinan J).

[22]Bodruddaza(2007) 228 CLR 651, 663 [24] (Gleeson CJ, Gummow, Kirby, Hayne, Heydon and Crennan JJ), 676 [79] (Callinan J).

[23]Bodruddaza(2007) 228 CLR 651, 662-663 [24] (Gleeson CJ, Gummow, Kirby, Hayne, Heydon and Crennan JJ), 676 [79] (Callinan J).

[24]Bodruddaza(2007) 228 CLR 651, 664 [30] (Gleeson CJ, Gummow, Kirby, Hayne, Heydon and Crennan JJ), 676 [79] (Callinan J).

[25](2007) 165 FCR 471, 476 [22].

[26](2013) 217 FCR 55, 58 [9].

[27][2016] FCA 1252, [28].

Given the need to construe the provisions of Pt 8 of the Act coherently as a whole, the plaintiff submitted that, although strictly obiter, Nettle J’s analysis provided clear and unequivocal support for the contention that the expression ‘in relation to a migration decision’ appearing in Pt 8, including in s 484, is confined to proceedings in the nature of judicial review.

The plaintiff next referred to four judgments of single judges of this Court in support of the proposition that the writ of habeas corpus does not provide a remedy by way of judicial review. In PR v Department of Human Services,[28] Osborn J (as he then was) made a statement in precisely those terms.[29] This observation was referred to with approval by Bell J in Antunovic v Dawson,[30] John Dixon J in Certain Children v Minister for Families and Children (No 2),[31] and Incerti J in RP v Foreman.[32] In RP, Incerti J observed that the writ of habeas corpus ‘is usually ill-suited as a basis for courts to inquire into administrative law grounds of review or a collateral attack on the judicial exercise of discretion which are traditionally the domain of judicial review proceedings’.[33]
[28][2007] VSC 338.
[29]Ibid [6].
[30](2010) 30 VR 355, 383 [126] (‘Antunovic’).
[31](2017) 52 VR 441, 596 [540] (‘Certain Children (No 2)’).
[32][2020] VSC 522, [44] (‘RP’).
[33]Ibid [44], citing Certain Children (No 2) (n 31) 596 [540] and Re Officer In Charge of Cells, ACT Supreme Court; Ex parte Eastman (1994) 123 ALR 478, 480.

The plaintiff also referred to the judgment of Garde J in Certain Children v Minister for Families and Children as demonstrating the difference between judicial review applications and applications for habeas corpus.[34] His Honour stated:[35]

The plaintiffs seek a writ of habeas corpus or an order directing the Secretary to release them and all of the other young people detained at the Grevillea unit. However no argument or case was made that the plaintiffs were unlawfully detained so as to be entitled to be released into the community.
I accept the defendants’ submission that the writ of habeas corpus should not issue in these circumstances. The issue here is where the plaintiffs can be detained and not whether they should be detained. That is for the Children’s Court on another day. There are remedies by way of judicial review which are available to redress the plaintiffs’ claims if they are successful.

[34](2016) 51 VR 473.

[35]Ibid 298–9 (citations omitted).

The plaintiff also relied on the following statements by Toohey J in Chu Kheng Lim v Minister for Immigration as identifying the different nature and effect of judicial review proceedings and proceedings for the issue of the writ of habeas corpus:[36]

In consequence, any relevant power in s.16(1)(d) of the ADJR Act or s.23 of the Federal Court Act must yield to ss.54L and 54N. However, if any of the plaintiffs was not a designated person or, being a designated person, was kept in detention beyond any of the periods allowed in ss.54L and 54N, a writ of habeas corpus would secure the release of that person from custody. I assume, of course, that there is no other statutory warrant for the detention of that person. Habeas corpus would lie because of the unlawful detention of the person. It would not be necessary to invoke the ADJR Act to secure that person's release though a decision to treat a person as a designated person may well be susceptible of challenge under that Act. It should also be said that since s.54R is directed only to the release from custody of a designated person who is lawfully kept in custody under the provisions of Div.4B, the section is not a barrier to the making of an interlocutory order for the release from custody of a designated person who is challenging the lawfulness of his or her custody where the court is satisfied that the lawfulness of the custody is sufficiently arguable to warrant an interlocutory order for release from custody in accordance with accepted principles governing the grant of interlocutory relief ((91) See Msilanga (1992) 105 ALR, per Burchett J at p 318, although his Honour was not concerned with the issues that have arisen in the present appeal.). The result is that, while s.54R is valid to the extent indicated, in reality it adds nothing to Div.4B.

[36](1992) 176 CLR 1, 51.

As to the second contention that the operation of s 484(1) of the Act is confined to public law remedies, the plaintiff relied upon Nettle J’s analysis in DBE17 referred to above and in particular his statement that ‘s 476A is confined to applications for public law remedies in the nature of judicial review of migration decisions’.[37] Section 476A contains the expression ‘jurisdiction in relation to a migration decision’ and provides as follows:
[37]DBE17 (n 15) 164 [15].

476A Limited jurisdiction of the Federal Court
(1)Despite any other law, including section 39B of the Judiciary Act 1903 and section 8 of the Administrative Decisions (Judicial Review) Act 1977, the Federal Court has original jurisdiction in relation to a migration decision if, and only if:
(a)the Federal Circuit Court transfers a proceeding pending in that court in relation to the decision to the Federal Court under section 39 of the Federal Circuit Court of Australia Act 1999; or
(b)the decision is a privative clause decision, or a purported privative clause decision, of the Administrative Appeals Tribunal on review under section 500; or
(c)the decision is a privative clause decision, or purported privative clause decision, made personally by the Minister under section 501, 501A, 501B, 501BA, 501C or 501CA; or
(d)the Federal Court has jurisdiction in relation to the decision under subsection 44(3) or 45(2) of the Administrative Appeals Tribunal Act 1975.

The plaintiff also relied on the judgment of Bromberg J in Plaintiff S99/2016 v Minister for Immigration[38] in which his Honour considered the meaning of the phrase ‘in relation to a migration decision’ in ss 476A and 486A of the Act. Justice Bromberg undertook a detailed analysis of the judgment of the High Court in Bodruddaza v Minister for Immigration and Multicultural Affairs[39] and reached the following conclusion to the same effect as Nettle J in DBE17 referred to above:[40]

In other words, the Court construed the words “a remedy … in relation to a migration decision” as applying only to judicial review applications, that is, in relation to public law remedies sought in relation to a migration decision. The words “a remedy … in relation to a migration decision” did not capture, for example, an action in tort for false imprisonment relating to detention purportedly under s 189 of the Act (as the Solicitor-General had submitted that it did). A plaintiff would not be precluded by s 486A(1) from bringing an action in false imprisonment after the 84-day period prescribed by the section.

[38](2016) 243 FCR 17 (’Plaintiff S99’).

[39](2007) 228 CLR 651.

[40]Plaintiff S99 (n 38) [417] (emphasis in original).

The plaintiff also relied on Bromberg J’s conclusion about the construction of s 474 of the Act and his consideration of the judgment of Siopis J in Fernando v Minister for Immigration and Citizenship:[41]
[41]Plaintiff S99 (n 38) [418], [433] (emphasis in original). See Fernando v Minister for Immigration and Citizenship (2007) 165 FCR 471.

It is abundantly clear that the purpose of s 474 was to restrict judicial review of migration decisions. The act that inserted s 474 was assented to on the same day and as part of the same package of “legislative reforms of judicial review” that inserted s 486A. A unanimous High Court held that s 486A was confined to judicial review processes and was not intended to preclude, for example, an action in tort against the Commonwealth for false imprisonment. The same consideration led Siopis J to conclude that the phrase “in relation to a migration decision” should be read “in relation to an application for judicial review of a migration decision”. It seems to me that precisely the same course is open here, and for the same reasons. In essence, I would read the words “in an application for judicial review” between the words “is not” and “subject to prohibition …”, and a corresponding phrase into s 474(1)(b) so that the section read thus:
(1) A privative clause decision:
(a) is final and conclusive; and
(b)must not, in an application for judicial review, be challenged … ; and
(c)is not, in an application for judicial review, subject to prohibition, mandamus, injunction, declaration or certiorari in any court on any account.

The plaintiff also relied upon Bromberg J’s consideration of the judgment of Hiley J in SGS v Minister for Immigration and Border Protection,[42] on which the defendants relied. That proceeding concerned a claim by a child for damages for negligence suffered while in detention and for an injunction restraining the child from being returned to a detention centre. Justice Hiley held that s 484 resulted in the Supreme Court of the Northern Territory of Australia not having jurisdiction to grant the injunctive relief sought by the plaintiff in that proceeding. In Plaintiff S99, Bromberg J declined to adopt the reasoning in SGS on the basis that it was plainly wrong,[43] for reasons including that:[44]

Respectfully, I would not have declined to follow Bodruddaza on that basis. The holding of Bodruddaza was that the words “a remedy … in relation to a migration decision” was not, contra the submissions of the Solicitor-General, “sufficiently broad to encompass more than applications for judicial review”. Instead, s 486A applies to remedies sought in applications for judicial review in relation to migration decisions. Section 484 of the Act, introduced by the same Act, denies to courts other than those identified in s 484(1) “jurisdiction in relation to a migration decision.” By reasoning analogous to Bodruddaza, the section denies jurisdiction in judicial review applications in relation to migration decisions. Jurisdiction in non-judicial review applications obtains. Further, if (as the defendants in SGS allowed), the Supreme Court had jurisdiction to hear a tort claim against the Commonwealth, I cannot see a basis for saying that s 484 (which denies that court jurisdiction in certain cases) would permit the remedy of damages but not the remedy of an injunction.

[42](2015) 34 NTLR 224 (‘SGS’).

[43]Plaintiff S99 (n 38) [444]–[446], discussing SGS (n 42).

[44]Plaintiff S99 (n 38) [444].

In submitting that the grant of the writ of habeas corpus is not a public law remedy, the plaintiff made the following points. First, they rejected the defendants’ contention that habeas corpus is not a remedy and relied on a number of authorities said to put beyond dispute that habeas corpus is in fact a remedy.[45] They also relied on the criticism by the authors of Habeas Corpus: Australia, New Zealand and the South Pacific of the statement by John Dixon J in Certain Children (No 2) upon which the defendants relied.[46] Secondly, they pointed to the fact that habeas corpus is a remedy given against both government officials and private citizens. Thirdly, they relied on various authorities said to establish the proposition that habeas corpus is a common law remedy and not a public law remedy including the reference by Bell J in Antunovic to ‘[t]he common law remedy of habeas corpus’[47] and the following observations by Isaacs J in Ex parte Walsh and Johnson; In re Yates:[48]

In Bacon's Abridgment, Habeas Corpus ad Subjiciendum (B) 3, it is said; “A habeas corpus is a writ of right, which the subject may demand, and is the most usual remedy by which a man is restored to his liberty, if he hath been against law deprived of it.” It is therefore the recognized remedy upon a complaint by or on behalf of one person against another person that the former is unlawfully imprisoned by the latter and demands his liberty. If he requires damages another remedy is provided. But for the specific relief of immediate liberation the appropriate form of proceeding is by writ of habeas corpus directed to the person complained against, who is thereby brought before the Court to defend the imprisonment if he can. The person complaining and the person complained against are parties. The proceeding therefore is within the literal import of the word “cause.” I have so far based my conclusion on the nature of the writ of habeas corpus ad subjiciendum as affirmatively recognized in various authorities. It is worthwhile, however, observing the probable source of the writ. In the notes to chap. 16 in Forsyth's Cases and Opinions on Constitutional Law (at p. 439) it is stated that the writ of habeas corpus seems to have been adopted from the writ de homine replegiando. That was the old common law remedy where a person was improperly restrained of his liberty under no legal process.

[45]De Alwis v The State of Western Australia [2014] WASC 161, [3] (Martin CJ); Antunovic (n 30) 392–3 [177] (Bell J).

[46]David Clark and Gerard McCoy, Habeas Corpus: Australia, New Zealand and the South Pacific (Federation Press, 2^nd ed, 2018) 37 fn 273. The authors described as ‘nonsense’ John Dixon J’s statement at 595 [537] that: ’In any event, habeas corpus is a writ, not a remedy. It is a mechanism for making a substantive order releasing a person from detention and is not a remedy in and of itself’.

[47]Antunovic (n 30) 394 [186].

[48](1925) 37 CLR 36, 76.

As to the third contention, the plaintiff submitted that, if the proceeding is not in relation to any ‘decision’, there could be no ‘migration decision’ to which the proceeding relates.

The defendants had informed the Court that their position was that the plaintiff’s detention was lawful because an officer knew or reasonably suspected the plaintiff to be an unlawful non-citizen in the migration zone, such that the officer was required to detain the plaintiff under s 189(1) of the Act until the officer no longer held the relevant reasonable suspicion that the plaintiff was an unlawful non-citizen, or one of the events in s 196(1) of the Act occurred.[49] The plaintiff’s position was that there was no decision made under s 189 of the Act and therefore no migration decision within the meaning of s 484.
[49]Section 189(1) is set out in [9] above. Section 196(1) provides ‘[a]n unlawful non-citizen detained under section 189 must be kept in immigration detention until: (a) he or she is removed from Australia under section 198 or 199; or (aa) an officer begins to deal with the non-citizen under subsection 198AD(3); or (b) he or she is deported under section 200; or (c) he or she is granted a visa’.

As I have noted, ‘migration decision’ is relevantly defined to mean a ‘privative clause decision’. Section 474(1) of the Act states:

474     Decisions under Act are final
(1)       A privative clause decision:
(a)       is final and conclusive; and
(b)must not be challenged, appealed against, reviewed, quashed or called into question in any court; and
(c) is not subject to prohibition, mandamus, injunction, declaration or certiorari in any court on any account.

In interpreting this and the other provisions relevant to the definition of ‘migration decision’, the plaintiff submitted that a privative clause is to be read strictly.[50] ‘[W]here – as here – there is a choice between a broader and narrower interpretation, the narrower should be preferred’.[51]
[50]Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476, 505 [72].
[51]Herald & Weekly Times Pty Ltd v A (2005) 160 A Crim R 299, 304 [18] (Maxwell P, Nettle JA).

The plaintiff contended that his detention under s 189 of the Act is not a product of a privative clause decision.

(a) First, it was submitted that his detention under s 189 of the Act could not be properly characterised as a ‘decision’. Instead, it was submitted that, upon an officer knowing or reasonably suspecting that a person in an immigration zone is an unlawful non-citizen, it was an ‘inevitable consequence’ or a ‘statutory command’ that the person is detained.[52] In this way it was submitted that s 189 is akin to an involuntary reflex or act, not a decision. Drawing an analogy between the terms of s 189 and provisions which authorise arrest, the plaintiff referred to Bell J’s statement in Director of Public Prosecutions v Kaba that an arrest — in that case, for a traffic offence — does not involve the making of any decision for the purposes of s 38 of the Charter of Human Rights and Responsibilities 2006.[53] The plaintiff submitted that the same analysis obtains for detention under s 189.

(b) Secondly, noting the requirement in s 474(1)(a) that a privative clause decision be ‘final and conclusive’, the plaintiff submitted that detention under s 189 is continuous in nature, and therefore incapable of being described as conclusive. This analysis was said to be supported by the judgment of Besanko J in Burgess v Commonwealth,[54] where his Honour noted that other provisions of the Act implicitly required ‘ongoing satisfaction of the requirements of s 189 and not merely satisfaction of the requirements of s 189 at the initial detention stage’.[55] His Honour instead characterised detention as an ‘act’.[56] The plaintiff submitted that, given that an officer had to be continuously satisfied that the requirements of s 189 are met in order to detain, it was absurd to suggest that detention involves a decision. Such an interpretation would give rise to complexities in determining when and how many times that detention could be challenged.

[52]Plaintiff M70/2011 v Minister for Immigration and Citizenship (2011) 244 CLR 144, 174 [43]; Ruddock v Taylor (2005) 222 CLR 612, 621 [23]; Al-Kateb v Godwin (2004) 219 CLR 562, 564 [17].

[53]Director of Public Prosecutions v Kaba (2014) 44 VR 526, 647 [467].

[54](2014) 378 ALR 501.

[55]Ibid 532 [124].

[56]Ibid.

Other authorities

The plaintiff submitted that a conclusion that s 484 does not deprive this Court of jurisdiction to hear and determine the present application is consistent with the decision in Cox v Minister for Immigration, Multicultural and Indigenous Affairs & Ors.[57] In that case it was held that the Supreme Court of the Northern Territory had jurisdiction to issue a writ of habeas corpus against the Minister in respect of asylum seekers detained under the Act.[58] However, as counsel for the plaintiff acknowledged, s 484 was not raised in that case.
[57][2003] NTSC 111.
[58]Ibid [25], [42].

The plaintiff also relied upon the judgment of Wigney J in Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v PDWL,[59] in which his Honour dealt with an application for a writ in the nature of habeas corpus by a detained asylum seeker. His Honour rejected the claim that the Federal Court lacked jurisdiction because it was prevented from dealing with ‘migration decisions’ and concluded that the actions under s 189 do not relate to a ‘migration decision’.[60] In McHugh at first instance, Anderson J effectively held that Wigney J was plainly wrong.[61] Given the decision of the Full Court in McHugh (considered in detail below), it is unnecessary for present purposes to further consider the judgments of Wigney and Anderson JJ.
[59][2020] FCA 394.
[60]Ibid [63], [77].
[61][2020] FCA 416, [74]–[80].

The defendants’ submissions

The defendants advanced two central propositions in seeking to meet the plaintiff’s contentions as to how the Court has jurisdiction in this proceeding: (1) that the detention of the plaintiff clearly is a ‘migration decision’; and (2) that the contention that an application for the writ of habeas corpus is not a proceeding ‘in relation to’ a migration decision is wrong.

Dealing first with the first proposition, the defendants relied on the judgment of Edelman J in Mokhlis v Minister for Home Affairs.[62] In that case, although the plaintiff had arrived in Australia some years ago, because he did not hold a visa pursuant to the relevant provisions of the Act, he was an unlawful non-citizen and, in accordance with ss 189 and 196 of the Act, required to be held in immigration detention. The plaintiff alleged that he was suffering severe mental and physical harm as a result of his detention and that his detention was unlawful. He commenced a proceeding in the original jurisdiction of the High Court seeking a writ of habeas corpus and other injunctive and declaratory relief.
[62](2020) 94 ALJR 843 (‘Mokhlis’).

The issue which Edelman J was required to determine was whether the proceeding should be remitted to the Federal Circuit Court of Australia. As is presently relevant, his Honour referred to s 476(1) of the Act which provides that, subject to certain exceptions, the Federal Circuit Court has ‘the same original jurisdiction in relation to migration decisions as the High Court has under paragraph 75(v) of the Constitution’. His Honour then identified the need for a ‘migration decision’ as one of the jurisdictional hurdles in s 476(1).[63] After referring to the cascading series of definitions as to the meaning of ‘migration decision’ to which I have earlier referred, his Honour stated:[64]

The relief sought by the plaintiff concerns two migration decisions. One relevant decision that was made (not in the exercise of a discretion), which involved "doing ... any ... thing", was the detention of the plaintiff under s 189(1) of the Migration Act[65]. Another is a decision which is required to be made under s 198(1) involving the act of removing an unlawful non-citizen as soon as reasonably practicable after that person asks the Minister, in writing, to be so removed.

[63]Ibid 845 [10].

[64]Ibid 846 [12].

[65]See also McHugh v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 416, [73].

The defendants submitted that it was clear from this reasoning that detention under s 189 of the Act involved a decision and that what is in issue in this proceeding is clearly a migration decision. It was submitted to be clear that Edelman J entertained no doubt that the act of detaining a person was a migration decision. This was said to be a complete answer to the plaintiff’s point that there was no decision because there was a duty to detain.

The defendants also emphasised the extended definition of ‘decision’ including in s 474(3)(g) as the ‘doing or refusing to do any other act or thing’. The defendants submitted that the fact that a decision must be made when certain jurisdictional factors are established does not have the consequence that there is no decision. In support of that proposition, the defendants referred to the judgment of the Full Court of the Federal Court in EFX17 v Minister for Immigration and Border Protection[66] which concerned the cancellation of a visa on character grounds under the Act. Greenwood J stated:[67]

Section 501(3A) casts a mandatory obligation on the Minister to cancel a visa if the Minister is satisfied that the person does not pass the character test. The act of cancelling a visa pursuant to that mandatory obligation nevertheless involves making a “decision” to cancel once the Minister is satisfied of the relevant matters. Such a decision is plainly enough a “decision” by definition (s 474(3)(b)), and is treated as a decision by s 501CA(1) by describing it as the “original decision’, and is so treated by the parties in this proceeding.

[66][2019] FCAFC 230.

[67]Ibid [28] (Rares J agreeing).

The defendants criticised the plaintiff’s submission about the final and conclusive nature of decisions. In considering what is a privative clause decision under s 474, the defendants submitted that the plaintiff had taken subsection (1) as its definition, when in fact the definition was provided by subsection (2). The defendants submitted that, if a decision meets the requirement in subsection (2), then it is final and conclusive and therefore not subject to prohibition.

The defendants criticised the plaintiff’s reliance on Director of Public Prosecutions v Kaba on the basis that it concerned an entirely different statutory scheme and because the statute relevant to this proceeding contains an extended definition of ‘decision’.

In contesting the plaintiff’s submission that an application for a writ of habeas corpus is not a proceeding ‘in relation to’ a migration decision, the defendants relied upon the statement by Kiefel J (as she then was) in Kennon v Spry that the expression ‘in relation to’ ‘is of wide and general import and should not be read down in the absence of some compelling reason for doing so’.[68]
[68](2008) 238 CLR 366, 440 [217] (citations omitted).

The defendants acknowledged, however, that authority under the Migration Act had identified compelling reasons to read down the expression ‘in relation to’ in the context of that Act and in particular in the area of tortious unlawful imprisonment claims. A proceeding is therefore not ‘in relation to a migration decision’ if the legality of the decision is challenged by way of collateral challenge in a tort proceeding seeking damages.[69] The defendants submitted, however, that the observations in the authorities dealing with such claims do not supplant the words of the statute and that I am to be guided by matters of principle as to the breadth of the expression understood in its statutory context.
[69]See, eg, Bodruddaza v Minister for Immigration and Multicultural Affairs (2007) 228 CLR 651, 662–3 [21]–[25] (Gleeson CJ, Gummow, Kirby, Hayne, Heydon and Crennan JJ); DBE17 (n 15) 164 [14]–[15] (Nettle J). See also Fernando v Minister for Immigration and Citizenship (2007) 165 FCR 471, 476 [22] (Siopsis J); Tang v Minister for Immigration and Citizenship (2013) 217 FCR 55, 57–8 [7]; Okwume v Commonwealth [2016] FCA 1252, [25] (Charlesworth J).

The defendants also challenged the plaintiff’s submission that, in the context of the meaning of ‘privative clause decision’, a strict construction is to be applied. In reliance on the judgment of Leeming JA in Minister for Local Government v Blue Mountains City Council,[70] they submitted that no such presumption is to be applied in the context of a statutory provision that excludes and confers jurisdiction on particular courts.
[70](2018) 97 NSWLR 1132, 1152 [85].

As to the plaintiff’s reliance on DBE17 and the other authorities referred to by the plaintiff, the defendants submitted that the references therein to judicial review and public law remedies were not intended to mean that an application for a writ of habeas corpus is not in relation to a migration decision merely because it is not a judicial review proceeding. They submitted that the language adopted in DBE17 and the other cases relied on by the plaintiff was explicable in context, given that they were cases brought, in the main, for false imprisonment. The language now emphasised by the plaintiff was used to explain why those proceedings did not fall within the statutory language.

The defendants emphasised the words of Allsop CJ in Construction, Forestry, Maritime, Mining and Energy Union v Australian Building and Construction Commissioner (The Bay Street Appeal) that ‘whatever may be the form of expression by individual judges or groups of judges, the task requires the search for applicable principle, not an emphasis on the literality of words of judgments as if they were the text of a statute’.[71] They submitted that the approach adopted by Anderson J at first instance in McHugh exemplified this approach. In urging me to adopt his Honour’s analysis, the defendants’ central proposition was that a conclusion that this was a proceeding in relation to a migration decision was supported by his Honour’s judgment which the plaintiff had not shown to be plainly wrong. Self-evidently, however, that contention is no longer maintainable given the Full Court’s judgment.
[71][2020] FCAFC 192, [4] (Flick J agreeing), citing Cassell & Co Ltd v Broome [1972] AC 1027, 1085.

The defendants also referred to the statement by the High Court in Kirk v Industrial Court (NSW) that:[72]

The supervisory jurisdiction of the Supreme Courts was at federation, and remains, the mechanism for the determination and the enforcement of the limits on the exercise of State executive and judicial power by persons and bodies other than the Supreme Court. That supervisory role of the Supreme Courts exercised through the grant of prohibition, certiorari and mandamus (and habeas corpus) was, and is, a defining characteristic of those courts.

The defendants submitted that this statement confirmed that the jurisdiction of this Court is a creature of the common law and that there is no proper basis for distinguishing between the writ of habeas corpus and the other prerogative writs. Further, they submitted that, in this statement, the High Court recognised that all of prerogative writs are an aspect of the Court’s supervisory jurisdiction, being what could broadly be termed ‘judicial review’. The defendants also referred to Kirby J’s description in Mzot v Minister for Immigration to the remedies referred to in s 33 of the Judiciary Act, which includes habeas corpus, as being ‘public law remedies’.[73]

[72]Kirk (n 4) 580–1 [98].

[73]Mzot v Minister for Immigration (2008) 233 CLR 601, 638 [96].

The defendants also submitted, with reference to Anderson J’s decision in McHugh, that an application for a writ of habeas corpus relies upon a direct review of the lawfulness of the administrative action and is ‘not strictly a means of collaterally impeaching the jurisdictional validity of previous administrative decisions’.[74] The defendants referred to the reasons of Lords Scarman and Wilberforce in R v Home Secretary; Ex parte Khawaja, where the close relationship between judicial review and the writ of habeas corpus was noted.[75]
[74][2020] FCA 416, [82].
[75][1984] 1 AC 74, 99 (Lord Wilberforce), 111 (Lord Scarman).

The defendants submitted that a writ of habeas corpus is a process, not a remedy. If an application for a writ of habeas corpus is successful, a further order is required to compel the release of the illegally detained individual.[76] It was submitted that John Dixon J was correct in referring to habeas corpus as ‘a means to test legality of a given restraint on liberty or to test the lawfulness of the arrest and detention’ and explicitly dismissing the characterisation of the writ as a remedy. It was said that, when judges have previously referred to habeas corpus as a remedy, they have been loose with their language.
[76]The defendants noted that Bolton v Beane (1987) 162 CLR 514 was one example of where this had occurred.

Consideration

As I have explained, in their submissions as to why this Court does not have jurisdiction in respect of the plaintiff’s application, the defendants placed significant reliance on the judgment at first instance in McHugh. The judgment of the Full Court overturning the decision at first instance is central to resolving the present controversy. It is therefore necessary to outline in some detail the nature of the proceeding in McHugh and the Full Court’s reasons for judgment.

McHugh

The factual background to the proceeding was as follows. Mr McHugh was born in the Cook Islands. After he was abandoned by his biological parents, he was cared for by a Cook Islander woman and then, after she passed away, her daughter who was also a Cook Islander, and her husband, an Australian citizen. Mr McHugh arrived in Australia in 1975, when he was seven years old. His incoming passenger card recorded him as an Australian citizen. He was formally adopted by his carers in 1976. Shortly after his adoption, his birth was registered in Queensland.

From 1990 to at least 2001, Mr McHugh lived in a number of Aboriginal communities and identified as being an Aboriginal Australian. He was ostensibly recognised as such by an elder of the Ardyaloon Community. However, he did not know whether he was of Aboriginal biological descent. In 2017, Mr McHugh applied for, and was issued, an Australian passport.

Mr McHugh had an extensive criminal record of generally low-level offences spanning the period between 1987 and 2018 and across a number of States and the Northern Territory. In December 2005, he was convicted and sentenced to 16 months imprisonment for possessing a prohibited drug with intent. On 14 February 2018, Mr McHugh was convicted of various offences and sentenced to four months’ imprisonment.

Pursuant to s 501(3A) of the Act, where a non-citizen has been sentenced to a term of imprisonment of 12 months or more, and is currently serving a sentence of imprisonment, his or her visa is mandatorily cancelled. In February 2018, the relevant Commonwealth Department formed the view that Mr McHugh was a non-citizen and held an ‘absorbed person’ visa under the Act. In April 2018, Mr McHugh was notified that this visa had been cancelled by the Minister. On 11 May 2018, after he completed his term of imprisonment, he was transferred to immigration detention.

The day after he had been notified that his visa had been cancelled, Mr McHugh submitted a request for revocation of the visa cancellation. He contended that he had thought that he was an Australian citizen, held an Australian passport, had fathered children of Aboriginal descent, and had only found out in 2013 that he had been adopted by his parents.

The Minister, exercising a personal power under s 501CA(4) of the Act, decided not to revoke the visa cancellation. Mr McHugh initially sought judicial review of that decision in the Federal Court, but subsequently amended his statement of claim to seek relief including relief in the nature of a writ of habeas corpus and an injunction restraining the Minister from treating him as a non-citizen. The grounds of the application for a writ of habeas corpus were expressed as follows:

A.Edward McHugh is a citizen with the result that there was no power to grant, cancel, or revoke cancellation of any visa in his name, nor was or is he liable for detention under s 189 of the Migration Act 1958 (Cth).
B.Edward McHugh is not an alien for the purposes of the constitution and therefore cannot be detained as an ‘unlawful non-citizen’ under the Migration Act 1958 (Cth).

At first instance, Anderson J severed Mr McHugh’s application for judicial review from his application for release from detention and habeas corpus. His Honour rejected Mr McHugh’s claim that he was a citizen and not an alien, and dismissed Mr McHugh’s application for a writ of habeas corpus and associated relief. As to the latter, his Honour held that, because of the jurisdictional limitation in s 476A of the Act,[77] the Federal Court did not have original jurisdiction to hear and determine the Mr McHugh’s application for habeas corpus because that remedy directly challenged the lawfulness of Mr McHugh’s detention.[78] This was because, applying DBE17, the reach of the jurisdictional limitation in s 476A(1) of the Act was confined to applications for ‘public law remedies in the nature of judicial review’.[79] Having found the detention to be a ‘migration decision’ for the purposes of the Act,[80] Mr McHugh’s application for a writ of habeas corpus was, in substance, an application for a public law remedy in the nature of direct judicial review of a migration decision.[81]
[77]Section 476A is set out in [23] above.
[78]McHugh v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 416 [18].
[79]McHugh v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 416 [68].
[80]McHugh v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 416 [73].
[81]McHugh v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 416 [83].

On appeal, the Full Court upheld a number of the grounds of appeal advanced on behalf of Mr McHugh. Relevantly for present purposes, the Full Court held that the Federal Court had jurisdiction and power to entertain and issue a writ of habeas corpus, or make an order in the nature of habeas corpus.[82] In relation to s 476A of the Act[83] and the question of jurisdiction, Allsop CJ (with whom Besanko J agreed)[84] adopted the following analysis:
[82]McHugh (n 2) [2] (Allsop CJ), [75] (Besanko J), [199] (Mortimer J).
[83]See [23] above.
[84]McHugh (n 2) [74].

(a) Section 476A contains a ‘limitation upon the jurisdiction of this Court in the necessary clarity … by reference to the composite phrase “jurisdiction in relation to a migration decision”’.[85]
[85]McHugh (n 2) [11].

(b) After referring to the cascading set of provisions in the Act defining the phrase ‘migration decision’, including s 474(3)(g), his Honour observed that ‘[t]his granularity of the concept of “decision” is the basis for the conclusion that the conduct of an officer in detaining the person upon the basis of knowledge or reasonable suspicion referred to in s 189(1) is a migration decision’.[86]
[86]McHugh (n 2) [14].

(c) His Honour continued:[87]
[87]McHugh (n 2) [15]–[16] (underlining added).

The phrase “in relation to” has a meaning derived from Bodruddaza v Minister for Immigration and Multicultural Affairs [2007] HCA 14; 228 CLR 651 at 662–663, esp [22] and [25]. Bodruddaza concerned s 486A (in Pt 8A), but the Full Court in Tang v Minister for Immigration and Citizenship [2013] FCAFC 139; 217 FCR 55 at 57–58, esp [8]–[9], applied it to s 476A. Tang has the support of Nettle J (sitting as a single Justice) in DBE17 v Commonwealth of Australia [2019] HCA 47; 266 CLR 156 at 164 [14]–[15]. From these authorities, and having regard to the terms of the Explanatory Memorandum for the Migration Litigation Reform Bill 2005 (Cth) discussed in Tang at 217 FCR 58 [8], the phrase “jurisdiction in relation to a migration decision” can be taken to be no wider than jurisdiction in public law remedies of direct judicial review of a migration decision. The phrase “in relation to” has no width or flexibility in this context beyond that. It does not include what might be called collateral attack upon a migration decision: Bodruddaza 228 CLR at 662 [22], such as a claim for false imprisonment available within jurisdiction under s 39B(1A)(c) and s 75(iii) of the Constitution by s 32(1) of the Federal Court of Australia Act 1976 (Cth): PCS Operations Pty Ltd v Maritime Union of Australia [1998] HCA 29; 153 ALR 520 at 523–526 [6]–[13]. See also Commonwealth v Okwume [2018] FCAFC 69; 263 FCR 604; and DBE17 v Commonwealth [2019] HCA 47; 266 CLR 156.

In other contexts and in answering other questions habeas corpus can be properly described as a species of judicial review: see for example, R v Home Secretary; Ex parte Khawaja [1984] 1 AC 74 at 111 and see the valuable discussion in Farbey J, Sharpe RJ, Atrill S, The Law of Habeas Corpus (3rd ed, Oxford University Press, 2011) at 56–64. In the present statutory context involving the reordering of original and appellate jurisdiction between related courts, the notion of judicial review is to be more narrowly conceived. The writ is of great historical and contemporary importance, and calls upon the detainer (in effect the Minister) to justify the lawfulness of the detention, failing which justification being demonstrated, the person should be released. It does not involve direct judicial review of any decision.

(d) His Honour identified that s 476A(1)(c) of the Act meant that the Federal Court had jurisdiction in direct judicial review proceedings concerning decisions of the Minister personally under certain provisions of the Act,[88] but not otherwise in direct judicial review.[89] Further:[90]

The effect of s 476A(1) is that the Court has no jurisdiction in (that is, no authority to decide) direct judicial review of the decision to take Mr McHugh into detention under s 189 or any decision to continue or maintain his detention. The removal or carve out of jurisdiction by s 476A does not, however, go beyond such direct judicial review, and s 476A does not purport to restrict otherwise the width of the Court’s matter jurisdiction under s 39B(1) or (1A)(c) that it has or otherwise would have, such as where the removal or carve out does not apply because of s 476A(1)(c). …

[88]Including the decision not to revoke Mr McHugh’s visa cancellation under s 501CA of the Act.

[89]McHugh (n 2) [17].

[90]McHugh (n 2) [18].

The other member of the Court, Mortimer J, stated that her construction of s 476A was ‘compatible’ with the proposition that the phrase ‘in relation to a migration decision’ in s 476A ‘should be confined: first, to public law remedies; and second, to “direct” judicial review’. Her Honour also stated that habeas corpus, as a prerogative writ, is a public law remedy.[91]
[91]McHugh (n 2) [247].

The Full Court determined that, where the Federal Court otherwise has original jurisdiction, whether under s 39B of the Judiciary Act or any other applicable statutory jurisdiction), it has the power to issue a writ of habeas corpus under s 23 of the Federal Court of Australia Act.[92] The Chief Justice stated:[93]

Whilst the Court has necessary implied jurisdiction as an incident of the general grant to the Court as a superior court of law and equity to deal with matters before it: … it does not have the broad scope of inherent jurisdiction of the sovereign’s superior courts in England. This fact helps one to recognise the inappropriateness of referring to jurisdiction to entertain habeas corpus. As a writ or remedy it is an incident of the exercise (if appropriate to be exercised) of the Court’s jurisdiction, otherwise conferred. On the other hand, a court that has jurisdiction to entertain any controversy about the liberty of a subject in any circumstances (public or private) may employ the writ, as a remedy, in that wide inherent jurisdiction, to vindicate the subject’s general right to be free of unlawful detention. This Court, with statutory (including any implied) jurisdiction has authority (from that jurisdiction) and power (from s 23) to issue the writ of habeas corpus, if it be an appropriate remedy (interlocutory in character) within or incidental to the resolution of the controversy (the matter) before the Court and in respect of which it has jurisdiction. …
[92]McHugh (n 2) [214] (Mortimer J), with whom Allsop CJ and Besanko J agreed (at [20], [75]).
[93]McHugh (n 2) [21] (citations omitted).

Discussion

As referred to above, having reviewed the authorities relied upon by the plaintiff in this proceeding including Bodruddaza and DBE17, as well as the explanatory memorandum for the Migration Litigation Reform Bill 2005, Allsop CJ and Besanko J concluded that the phrase ‘jurisdiction in relation to a migration decision’:[94]

can be taken to be no wider than jurisdiction in public law remedies of direct judicial review in a migration decision. The phrase ‘in relation to’ has no width or flexibility in this context beyond that.

Further, their Honours also concluded that, in the context of the Act, the writ of habeas corpus ‘does not involve direct judicial review of any decision’.[95]

[94]McHugh (n 2) [15].

[95]McHugh (n 2) [16].

Section 484(1) of the Act contains in substance the same expression to that referred to above. It is apparent that the Full Court proceeded on the basis that it carries the meaning referred to above, not just in s 476A, but in the other provisions in which it appears in Pt 8 of the Act, which includes s 484(1) of the Act. It is therefore apparent that the reasons for judgment of the Full Court support and validate the first contention advanced by the plaintiff as to why this Court has jurisdiction in respect of the plaintiff’s application; that s 484(1) of the Act only prohibits proceedings in the nature of judicial review and the plaintiff’s application does not seek judicial review.

The defendants formally submitted that McHugh was wrongly decided by the Full Court but, as an intermediate appellate court decision, it was not open to me as a judge sitting alone not to follow it. I do not consider that this is a correct statement of principle. As stated by the High Court in Farah Constructions v Say-Dee Pty Ltd:[96] ‘[i]ntermediate appellate courts and trial judges in Australia should not depart from decisions in intermediate appellate courts in another jurisdiction on the interpretation of Commonwealth legislation or uniform national legislation unless they are convinced that the interpretation is plainly wrong’.
[96](2007) 230 CLR 89, 151–2 [135].

The defendants have not sought to demonstrate that the Full Court was plainly wrong and I do not consider that the decision can be so characterised. In determining the present application, it is therefore appropriate that I follow McHugh, unless it is otherwise distinguishable.

The defendants contended that McHugh is distinguishable in the following way. They submitted that it is necessary to first acknowledge the limited jurisdiction of the Federal Court in respect of ‘migration decisions’ by reason of s 476A(1) of the Act. The Chief Justice stated that ‘[t]he effect of s 476A(1) is that the Court has no jurisdiction in (that is, no authority to decide) direct judicial review of the decision to take Mr McHugh into detention under s 189 or any decision to continue or maintain his detention’.[97] Nevertheless, the Full Court held that it could make an order in the nature of habeas corpus. This was because it found that jurisdiction existed by reason of s 476A(1)(c)[98] in respect of Mr McHugh’s claim for judicial review of a decision not to revoke his visa cancellation under s 501CA of the Act.[99] The Court also had jurisdiction to determine whether Mr McHugh was a non-alien.[100] The Full Court therefore had power to make an order in the nature of habeas corpus because it had the power to make orders and writs as appropriate within the jurisdiction conferred upon it to determine these claims.
[97]McHugh (n 2) [18].
[98]See McHugh (n 2) [18] (Allsop CJ), [74] (Besanko J), [226]–[227] (Mortimer J).
[99]McHugh (n 2) [17].
[100]McHugh (n 2) [19] (Allsop CJ), [175], [177] (Mortimer J).

By contrast, in this matter, the only substantive relief sought by the plaintiff is a writ of habeas corpus. Unlike in McHugh, the only ‘migration decision’ challenged is the decision to detain Mr McHugh under s 189. The only issue in this case is the legality of the plaintiff’s detention. In McHugh, there were other claims about whether s 189 was incapable of application to Mr McHugh because he was not a constitutional alien and whether the decision not to revoke the mandatory cancellation of his visa was affected by jurisdictional error.

The defendants submitted that the Chief Justice’s statement that s 476A did not permit direct judicial review of a migration decision is to be ‘read alive’ to the point made by the Full Court that there were no other bases for jurisdiction. His Honour’s statement that an application for an order in the nature of habeas corpus does not relevantly involve direct judicial review must also, so it was submitted, be understood in the context of what followed in his reasons for judgment.

The defendants submitted that the restriction in s 476A was not effective to deny the Federal Court’s power to make an order in the nature of habeas corpus in the exercise of jurisdiction otherwise conferred to determine the validity of the decision not to revoke Mr McHugh’s mandatory cancellation and whether or not s 189 could apply to him. It was submitted that that must be how the Chief Justice’s observations in [16] are to be read, otherwise his Honour’s explanation at [17]–[18] would be otiose. If it were enough to avoid the limiting aspect of s 476A that habeas corpus was not the same as direct judicial review, then his Honour’s analysis of the Federal Court’s jurisdiction otherwise to determine Mr McHugh’s case would have been unnecessary. This was submitted to cohere with the Chief Justice’s later observation that habeas corpus can be sought ‘as a remedy within, or as an incident of, the matter that included the judicial review of the decision under s 501CA’.[101]
[101]McHugh (n 2) [23].

In contrast, the only basis in this case for exercise of a power to grant habeas corpus is a dispute about the lawfulness of the decision to detain the applicant, that being the relevant ‘migration decision’. The defendants submitted that habeas corpus could issue as an order made as an incident of the determination of that matter, but that it is the work of s 484 to direct that the authority to determine that matter lies with the Federal Court. In that way, this would not work any injustice on the plaintiff as he can bring a proceeding in the Federal Court.

The different features in the claims brought by Mr McHugh and the claim brought by the plaintiff in this proceeding as elaborated by counsel for the defendants do not provide a cogent basis for me to distinguish the Full Court’s decision.

In [15] of his reasons for judgment, the Chief Justice, with the agreement of Besanko J, provides a clear and authoritative statement as to the proper construction of the phrase ‘jurisdiction in relation to a migration decision’, being in substance the same expression as appears in s 484 of the Act.[102] Consistent with the plaintiff’s submissions before me, their Honours state that the phrase ‘can be taken to be no wider than jurisdiction in public law remedies of direct judicial review of a migration decision’.[103] In their attempt to distinguish McHugh, the defendants do not address at all this aspect of the reasons of the Full Court which is plainly critical to the task of statutory construction in determining the operation and effect of s 484(1).
[102]‘Jurisdiction in relation to migration decisions’.
[103]McHugh (n 2) [15].

Consistent with the submissions of the plaintiff, there are at least four authorities of this Court which establish the proposition that the writ of habeas corpus does not provide a remedy by way of judicial review. Those authorities have not been shown to be plainly wrong. I respectfully agree with them. Further, in the context of the Migration Act, the Chief Justice and Besanko J have confirmed that habeas corpus does not involve direct judicial review of any decision.[104]
[104]McHugh (n 2) [16].

As stated by Mortimer J in McHugh, as a statutory court (and putting to one side questions of accrued jurisdiction), the Federal Court’s primary jurisdiction in a matter must be identified by reference to statute.[105] It is that basal fact which explains the features of the decision of the Full Court which the defendants have advanced as characteristics said to render the judgment as being distinguishable. They do not, however, bear upon the inherent jurisdiction of this Court to issue the writ of habeas corpus. More particularly, neither do they relevantly affect the determination of the operation and effect of s 484 of the Act with which I am concerned. They are considerations specific to and reflective of the limitations on the Federal Court’s jurisdiction expressed by s 476A. Whereas it was necessary for the Full Court to consider the application before it having regard to its limited jurisdiction, save for the commonality in the critical language used in ss 476A and 484, those issues do not arise before me.
[105]McHugh (n 2) [199].

For the above reasons, it is appropriate that I follow the decision of the Full Court in McHugh. For the reasons I have outlined, consistent with the plaintiff’s first contention, this Court has jurisdiction to hear and determine the plaintiff’s application. In the circumstances, it is unnecessary for me to determine the other contentions advanced by the plaintiff as to why this Court has jurisdiction in relation to his application.

The proceeding will be listed for further hearing before me at 10.30am on 28 January 2021. For the purposes of that hearing, the proceeding will be listed in the Practice Court for directions at 10.45 am on 23 December 2020.

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[2020] VSC 871

21 December 2020