Fje20 v Minister for Home Affairs
[2021] FCCA 1900
•31 August 2021
FEDERAL CIRCUIT COURT OF AUSTRALIA
FJE20 v Minister for Home Affairs [2021] FCCA 1900
File number(s): SYG 2994 of 2020 Judgment of: JUDGE DRIVER Date of judgment: 31 August 2021 Catchwords: MIGRATION – Application for summary dismissal – claim of unlawful detention where applicant released from detention – claim based in tort – whether accrued jurisdiction exists considered – summary dismissal application granted. Legislation: Administrative Decisions (Judicial Review) Act 1979 (Cth)
Federal Circuit Court of Australia Act 1999 (Cth) ss 10, 14, 18
Migration Act 1958 (Cth) ss 198, 198AD, 474, 476, 476A, 477, 486A, 494AB
Transfer of Land Act 1958 (Vic)
Federal Circuit Court Rules 2001 (Cth)
Cases cited: AGH21 v Minister for Home Affairs [2021] FCA 452
Ainsworth v Criminal Justice Commission (1992) 175 CLR 564
ASIC v Edensor Nominees Pty Ltd (2001) 204 CLR 559
Bodruddaza v Minister for Immigration and Multicultural Affairs 228 CLR 651
Carlton & United Breweries Ltd v Castlemaine Tooheys Ltd (1986) 161 CLR 543 at 553
Commonwealth of Australia v AJL20 [2021] HCA 21
DBE17 (by his litigation guardian Arthur) v Commonwealth (2019) 266 CLR 156
Fencott v Muller (1983) 152 CLR 570
Fernando v Minister for Immigration and Citizenship (2007) 165 FCR 471
Gardner v Dairy Industry Authority (NSW) (1977) 52 ALJR 180
Hepburn v Beauty Services Holdings Pty Ltd (No 2) [2019] FCA 1200
McHugh v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 223
Minister for Home Affairs v DLZ18 [2020] HCA 43
Mokhlis v Minister for Home Affairs [2020] HCA 30
Momcilovic v The Queen (2011) 245 CLR 1
Northern Territory v Mengel (1995) 185 CLR 307
Philip Morris Inc v Adam P Brown Male Fashions Pty Ltd (1981) 148 CLR 457
Rana v Google Inc (2017) 254 FCR 1
Rizeq v Western Australia (2017) 262 CLR 1
Tabcorp Holdings Ltd v Victoria (2016) 90 ALJR 376
Tang v Minister for Immigration and Citizenship (2013) 217 FCR 55
Waters & Durrant [2015] FCCA 2419
Number of paragraphs: 57 Date of hearing: 16 August 2021 Place: Sydney Counsel for the Applicant: Mr J Gormly Solicitors for the Applicant: Sydney West Legal and Migration Counsel for the Respondents: Ms C Ernst Solicitors for the Respondents: Australian Government Solicitor ORDERS
SYG 2994 of 2020 BETWEEN: FJE20
Applicant
AND: MINISTER FOR HOME AFFAIRS
First Respondent
MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
Second Respondent
COMMONWEALTH OF AUSTRALIA (and another named in the Schedule)
Third Respondent
ORDER MADE BY:
JUDGE DRIVER
DATE OF ORDER:
31 AUGUST 2021
INTERLOCUTORY ORDERS:
1.Pursuant to rule 13.10(a) of the Federal Circuit Court Rules 2001 (Cth), the amended application filed on 30 April 2021, as proposed to be further amended by the third further amended application lodged on 2 August 2021, is dismissed on the basis that the Court lacks jurisdiction to hear and determine the application.
2.Each of the applications listed in the annexure to this judgment are also dismissed.
REASONS FOR JUDGMENT
JUDGE DRIVER:
INTRODUCTION AND BACKGROUND
By an Application in a Case filed on 17 May 2021, the respondents seek the summary dismissal, under rule 13.10(a) of the Federal Circuit Court Rules 2001 (Cth) (Federal Circuit Court Rules), of the applicant’s amended application filed on 30 April 2021. The applicant having been released from detention, the sole basis for his claim to substantive relief is a claim in damages for wrongful imprisonment (the entitlement to which the respondents deny), together with prohibitive and declaratory relief (sought, apparently, in aid of the claim for wrongful imprisonment or to prevent an apprehended further breach of duty in tort). Because Parliament has not conferred jurisdiction on this Court to hear claims in tort, the respondents assert that the applicant has no reasonable prospect of successfully prosecuting the claim.
Visa status and procedural history
The applicant is a transitory person who was brought to Australia for a temporary purpose under the former s 198C of the Migration Act 1958 (Cth) (Migration Act).[1] On or around 12 December 2020, the applicant requested in writing to be removed to Papua New Guinea.[2] On 21 January 2021, the applicant was granted a bridging visa and released from detention.[3]
[1] Affidavit of Claudia Calabrese made on 17 May 2021 (Calabrese Affidavit), [5]
[2] Calabrese Affidavit, [6]
[3] Calabrese Affidavit, [8]
At a directions hearing on 29 March 2021, after the Commonwealth submitted that this Court lacked jurisdiction to hear the applicant’s claim, I directed that the Commonwealth’s objection to jurisdiction be heard by way of a separate hearing on 16 August 2021. The applicant was required to file and serve an amended application, which he duly did within the time prescribed. The respondents subsequently filed their Application in a Case on 17 May 2021, in accordance with the Court’s orders.
The substantive application has been amended several times. On 2 August 2021, the Court received from the applicant a third further amended application, which substantially revised the orders sought and the substantive grounds of the application. The applicant would require leave to file the third further amended application. I dealt with the matter on the basis that the third further amended application would be the form of application on which the applicant would seek to rely if the summary dismissal application failed, and hence the summary dismissal application should be tested against that form of the application.
Relief sought in the application as amended
In his third further amended application, the applicant seeks:[4]
[4] The third further amended application also sought an extension of time. The paragraphs have been renumbered
Orders sought by the applicant
1.Injunction restraining the respondents’ officers or agents from removing the applicant from Australia pending the hearing and determination of these proceedings.
2.Injunction restraining the respondents from relying on their administration of their removal obligations under ss 198AD(2) and 198(1) of the Act between 23 October 2019 and 1 March 2021 in relation to the applicant as having been carried out in accordance with law.
3.Declaration that from 23 October 2019 the applicant no longer needed to be in Australia for the temporary purpose for which he had been brought to Australia.
4.Declaration that the failure of the respondent’s to take the applicant from Australia to PNG as soon as reasonably practicable from 23 October 2019 to 1 March 2021 11 December 2020 was in breach of s 198AD(2) Migration Act 1958 (Cth).
5.Declaration that the respondents owed a duty of care to the applicant to limit the duration of the applicant’s detention to that required for the purpose of removal of the applicant to Papua New Guinea (PNG) as soon as reasonably practicable either from the time [the] applicant no longer needed to be in Australia for the temporary purpose for which he had been brought to Australia, or from the time of the applicant’s request for removal.
6.Declaration that each of the respondents’ failure to establish a system for the assessment of the continued need of transitory persons to remain in Australia for the temporary purpose for which they brought to Australia under former s 198C Migration Act 1958 (Cth), or to establish a system to administer requests for return under s 198(1) of the Act, or to take steps to remove the applicant to PNG from either the end of his need to be in Australia from 23 October 2019 for the temporary purpose, or from the time of his request for removal on 12 December 2020; up to the grant of a bridging visa on 1 March 2021, was in breach of the respondents’ duty of care to limit the applicant’s detention.
7.Damages for breach of the duty of care, including aggravated and exemplary damages for the length and remoteness of the extended detention and the resulting mental anguish and anxiety suffered by the applicant.
8.Interest pursuant to s 76 of the Federal Circuit Court of Australia Act 1999.
9.An order the respondents pay the applicant’s costs.
10.Any further or other orders that the Court thinks fit.
The grounds proposed to be advanced are:
Grounds of application
The respondents
1.The third respondent (Commonwealth) is capable of being sued by reason of ss56 and/or 64 of the Judiciary Act 1903.
2.From 27 August 2018 to date, the Commonwealth departments responsible for the administration of the Migration Act 1958 (Cth) (the Act) were known as the Department of Home Affairs and the Department of Immigration, Citizenship, Migrant Services and Multicultural Affairs (the Departments).
3.The Commonwealth is vicariously liable for the negligent acts and omissions of its servants and agents, including officers and employees of the Departments, in relation to the detention of the applicant in the administration of the Act.
The detention of the applicant
4.On 13 September 2013 the applicant arrived at Christmas Island by boat as an unauthorised maritime arrival. On 9 October 2013 the Commonwealth took the applicant to Manus Island, PNG, pursuant to s 198AD of the Act.
5.On 23 October 2015 the Government of PNG found the applicant to be a refugee.
Transfer to Australia
6.On 25 June 2019 the applicant arrived in Australia from PNG under former s 198C of the Act in force at the time (Compilation No.146) upon the following:
6.1On 4 June 2019 Nicola Jandura, National Justice Project, notified the Secretary of the Department of Home Affairs on behalf of the applicant’s treating doctors that the applicant was a ‘relevant transitory person’ within the meaning of former s 198E(2) of the Act.
6.2On 7 June 2019, a Medical Officer of the Commonwealth agreed that the applicant required tertiary level psychiatric inpatient management beyond the level of care able to be provided by the Pacific International Hospital in Port Moresby (the Temporary Purpose), and as such agreed that the transfer of the applicant to Australia would be appropriate.
7.On 14 June 2019, the second respondent approved the applicant’s transfer from PNG to Australia for medical and psychiatric treatment and assessment, pursuant to s 198E of the former Act.
8.On 21 June 2019 in a document headed Agreement of Medical Transfer under the letterhead of Australian Border Force (ABF) and countersigned by an ABF officer, the applicant expressed his understanding that:
8.1.1the applicant’s transfer to Australia would be temporary for the purpose only of receiving specialist medical treatment which was not available in PNG;
8.1.2the applicant would be detained in an immigration detention facility in Australia on the basis he was an unlawful non-citizen whilst in Australia for this temporary purpose;
8.1.3the applicant would be escorted to and from the detention facility to receive the medical treatment; and
8.1.4once the applicant no longer needed to be in Australia for the medical treatment and was assessed as fit to travel, he would be transferred back to PNG in accordance with Australian law.
9.At the same time, the ABF provided the applicant further information in relation to his transfer to Australia in the documents ‘Transfer Information Sheet’ and ‘Property Management Information Sheet’ (other transfer information).
10.At the time of the Agreement of Medical Transfer the applicant was subject to a direction made 15 July 2014 by the then Minister for Immigration and Border Protection under s 198AD(5) of the Act that the applicant would, as an unauthorised maritime arrival who had previously been taken to PNG and brought to Australia as a transitory person for the temporary purpose of undertaking medical treatment, be taken back to PNG when he no longer needed to be in Australia for the medical treatment.
11.Upon the applicant’s arrival in Australia on 25 June 2019 the applicant was detained under s 189 of the Act as an ‘unlawful non-citizen’ within the meaning of that term in s 14 of the Act.
12.As an ‘unauthorised maritime arrival’, s 46A of the Act did not permit the applicant to make a valid application for a visa in Australia unless the Minister decided under [s] 46A(2) that it was in the public interest to do so. The Minister has made no such decision.
Desinence of need to be in Australia for the temporary purpose
13.At least by 23 October 2019, the applicant no longer needed to be in Australia for the temporary purpose for which he had been brought to Australia.
Particulars
a.The second respondent minister approved the transfer of the applicant to Australia on the basis of a medical opinion from a Medical Officer of the Commonwealth that the applicant required tertiary level psychiatric inpatient management for supervision, assessment, and stabilisation of the applicant’s bipolar disorder and manic symptoms and suicidality.
b.Upon arrival and throughout his detention the applicant was never admitted as an inpatient.
c.On 30 June 2019 an International Health and Medical Services consultant psychiatrist (IHMS psychiatrist) reported the applicant’s psychiatric disorder was drug induced and fully resolved with abstinence from cannabis.
d.On 25 September 2019 the IHMS psychiatrist found no evidence of mental illness, recommended the applicant cease mental health medications and that an IHMS mental health nurse carry out a review in one month and that if the applicant was then stable he could be managed with routine follow up.
e.On 23 October 2019, upon the recommended review, the IHMS mental health nurse reported the applicant would self-refer if he required mental health support, the applicant having told her that he felt much better ceasing his medication.
Request to return
14.On 12 December 2020 the applicant made a written request under s 198(1) of the Act to be removed to PNG.
15.From the time the applicant was transferred to Australia on 25 June 2019 to at least 16 February 2021 the respondents had not established a system to administer requests for return to regional processing countries by medevac transferees such as the applicant.
16.Until the grant of a bridging visa on 1 March 2021 the respondents did not take any steps to remove the applicant to PNG.
End of detention
17.The applicant was released from detention on 1 March 2021 upon the grant of a 6 month Final Departure Bridging Visa E. The applicant as an unauthorised maritime arrival is barred by s 46A of the Act from making a valid application for the extension of this visa.
18. The detention was done by the respondents.
Injunction restraining removal
19.The injunction is sought to prevent the removal of the applicant from Australia before the hearing and determination of the remainder of these proceedings.
Duty of Care
20.The harm to the applicant from his continued detention beyond either the end of his need to be in Australia for the Temporary Purpose, or from his request to be removed on 12 December 2020, up to the time of his release on 1 March 2021, was the loss of his freedom and resulting serious mental harm. This harm was foreseeable and known to the respondents.
21.The operation of ss 189 and 196 of the Act meant the applicant as an unlawful non-citizen had no control over the duration of his detention except to request his own removal under s 198(1) of the Act that he be returned to PNG or to commence legal proceedings for mandamus.
22.The respondents assumed responsibility for the applicant’s detention to end according to Australian law, which in the applicant’s case was as soon as reasonably practicable after the end of the applicant’s need to be in Australia for the Temporary Purpose (s 198AD(2)) or the date of his request to be removed (s 198(1)); or upon the grant of a visa.
23.The respondents also assumed these responsibilities in the acceptance of the understanding of the applicant of the matters set out in the Agreement of Medical Transfer dated 11 July 2019 and its notification of the other transfer information.
24.As a person originally from Sudan whom the respondents took from Australia to PNG as an unauthorised maritime arrival in 2013, and who was held by the respondents in closed detention in Australia since his transfer on 25 June 2019, the applicant was vulnerable in his dependency on the respondents for his very existence during his detention, and lacked capacity to protect himself, his detention as an unlawful non-citizen being lawful whether or not the respondents acted as required by ss 198AD(2) or s 198(1) of the Act to remove the applicant as soon as reasonably practicable.
25. In the premises of:
25.1.1the respondent’s knowledge of the harm of extended detention to the applicant beyond either his need to be in Australia for the temporary purpose or his request for return;
25.1.2the proximity of the relationship between the applicant as a lawfully detained person and the respondents;
25.1.3the dependence of the applicant on the respondents for his existence while in detention;
25.1.4the applicant’s reliance on the respondents to comply with their statutory duties;
25.1.5the applicant’s vulnerability in being unable to protect himself against extended detention except by request for return and legal action;
the respondents were under a duty of care to limit the duration of the applicant’s detention to that required for the purpose of removal of the applicant to PNG as soon as reasonably practicable from 23 October 2019, being the end of his need to be in Australia for the Temporary Purpose, or otherwise from [the] time of his request to be removed to PNG on 12 December 2020.
Breach of Duty
26.The respondents’ failure to establish a system for the assessment of the need for transitory persons to remain in Australia for the temporary purpose for which they brought to Australia under former s 198C of the Act, or to establish a system to administer requests for return under s 198(1) of the Act, or to take steps to remove the applicant to PNG from 23 October 2019, being the end of his need to be in Australia for the Temporary Purpose, or from 12 December 2020 being the time of his request to be removed, until the grant of a visa on 1 March 2021 11 December 2020, was in breach of the respondents’ duty of care to limit the applicant’s detention.
27. The applicant claims:
27.1.1Declarations that the respondents by conduct alleged in the Statement of Claim have breached the duties of care owed to the applicant;
27.1.2Damages for breach of the duties of care including aggravated and exemplary damages;
27.1.3Interest pursuant to s 76 of the Federal Circuit Court of Australia Act 1999.
27.1.4 Costs.
Respondents’ submissions on jurisdiction
The Federal Circuit Court has only such original jurisdiction as is conferred upon it by legislation.[5] Accordingly, in order to establish that this Court has jurisdiction to hear his application, the applicant must identify a provision of a statute or legislative instrument by which jurisdiction is conferred on the Court to hear claims of the kind the applicant seeks to bring. For the reasons below, there is said to be no such provision. It follows in the respondents’ submission that the applicant has no reasonable prospect of successfully prosecuting the proceeding, and his amended application should be summarily dismissed under rule 13.10(a) of the Federal Circuit Court Rules.
[5] Federal Circuit Court of Australia Act 1999 (Cth) (Federal Circuit Court Act), ss 10(1), (1A)
Migration Act
The Federal Circuit Court’s jurisdiction with respect to migration decisions is conferred by s 476(1) of the Migration Act (and subject to the qualifications in s 476(2)). Section 476(1) provides:
Subject to this section, 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.
The jurisdiction of this Court is conferred “in relation to migration decisions”. A cognate of that phrase appears in s 476A, which follows immediately after s 476 in the Migration Act. Section 476A(1) concerns the jurisdiction of the Federal Court. It provides that the Federal Court has original jurisdiction “in relation to a migration decision” only if one or more of the conditions in sub-paragraphs (a) to (d) are met.
The High Court has held, in construing the meaning of the phrase “in relation to a migration decision” as it appears in s 476A, that the phrase is confined to “public law remedies in the nature of judicial review of migration decisions”.[6] In DBE17, Nettle J (sitting as a single judge) affirmed the position at [14] that had, in his Honour’s words, “consistently been taken in the Federal Court”, namely, 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. The proper construction of the phrase was explained in the following terms by Siopis J in Fernando v Minister for Immigration and Citizenship[7] at [22] that the phrase “in relation to migration decisions” in the context of s 476A:
is to be read as if the words “an application for judicial review of”, were inserted between the words “in relation to” and “a migration decision”.
[6] DBE17 (by his litigation guardian Arthur) v Commonwealth (2019) 266 CLR 156 at [15] (Nettle J)
[7] (2007) 165 FCR 471
The reasoning for that construction of the phrase “in relation to a migration decision” has been explained in numerous decisions of the Federal Court, a number of which were cited with approval by Nettle J in DBE17 at [14]. It was explained most recently by the Full Federal Court in McHugh v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs.[8] Allsop CJ, after referring to Nettle J’s reasons in DBE17, explained the position to be as follows at [15]:
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 at [22], such as a claim for false imprisonment available within jurisdiction under ss 39B(1A)(c) and 75(iii) of the Constitution by s 32(1) of the Federal Court Act 1976 (Cth): PCS Operations Pty Ltd v Maritime Union of Australia (1998) 153 ALR 520; [1998] HCA 29 at [6]–[13]. See also Commonwealth v Okwume (2018) 263 FCR 604; 356 ALR 290; 160 ALD 515; [2018] FCAFC 69; and DBE17.
(emphasis in original)
[8] [2020] FCAFC 223
The other members of the Full Federal Court in McHugh adopted similar reasoning. Mortimer J stated at [247] 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”. Besanko J at [74] agreed with Allsop CJ, stating:
I agree that the authorities identified in his Honour’s reasons (at [15]) mean that 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 and, that the phrase “in relation to” has no width or flexibility in this context beyond that.
The phrase “in relation to a migration decision” has been given an equivalent construction in the context of s 486A of the Migration Act. Section 486A imposes a time limit for the making of an application to the High Court “in relation to a migration decision”. The meaning of that phrase in the context of s 486A was the subject of the High Court’s reasons in Bodruddaza v Minister for Immigration and Multicultural Affairs[9] (cited in DBE17 at [15] and in the passage from McHugh quoted above). In Bodruddaza, the High Court expressly rejected a submission by the Solicitor-General for the Commonwealth that the phrase “in relation to a migration decision” was broad enough to encompass an application in tort against the Commonwealth for false imprisonment.[10] The High Court observed at [22] that there were “cogent reasons why the phrase ‘a remedy … in relation to a migration decision’ should not be given a reading which would take s 486A beyond public law remedies and into the area of what might be called collateral attack upon migration decisions”.
[9] 228 CLR 651
[10] [21], [25] (Gleeson CJ, Gummow, Kirby, Hayne, Heydon and Crennan JJ)
The High Court’s construction of the phrase “in relation to a migration decision” in Bodruddaza was subsequently applied by the Full Federal Court to the construction of s 476A.[11] In Tang, the Full Federal Court observed at [7] that, notwithstanding that ss 476A and 486A appeared in different parts of the Migration Act, “There is no relevant difference… between Pt 8A and Div 2 of Pt 8 in relation to the issue of construction”. The Full Federal Court held at [9] that “Div 2 of Pt 8 of the Act is confined by the use of the expression ‘in relation to a migration decision’ to applications for direct judicial review of migration decisions and does not extend to ancillary judicial review proceedings in respect of orders made in proceedings of that kind”.
[11] Tang v Minister for Immigration and Citizenship (2013) 217 FCR 55
As is apparent from the foregoing, the meaning of the phrase “in relation to migration decisions” has been the subject of detailed judicial consideration, including in the context of provisions of the Migration Act that confer or confine the jurisdiction of a court.
The respondents submit that, for the same reasons that the Federal Court has jurisdiction over tortious claims, this Court does not. There is no warrant for reading the phrase “in relation to migration decisions” in s 476 differently from the phrase “in relation to a migration decision” in s 476A. To give those phrases inconsistent meanings would be to depart from the basic principle of statutory construction that “[a] consistent meaning should ordinarily be given to a particular term wherever it appears in a suite of statutory provisions”.[12]
[12] Tabcorp Holdings Ltd v Victoria (2016) 90 ALJR 376 at [65]
No other statutory basis for jurisdiction
The respondents submit that there is no other statutory basis on which this Court can grant the relief sought by the applicant.
It is said to be no answer to the jurisdictional objection (if such an answer be proferred) that the Court is by s 18 of the Federal Circuit Court Act conferred with jurisdiction in “associated matters”. Section 18 confers on the Court jurisdiction “in respect of matters not otherwise within its jurisdiction that are associated with matters” in which its jurisdiction is invoked. As explained above, the sole basis for the relief sought by the applicant is the claim for tortious damages (and declaratory relief sought in aid of that claim). Accordingly, there is no matter within jurisdiction with which the claims for damages and declaratory relief could be associated.
Extension of time
The applicant seeks “an order that the time for making the amended application for damages for false imprisonment be extended under section 477 of the Migration Act 1958”. Such an order does not appear to be necessary, the amended application having been filed in existing proceedings and with the leave of the Court. At the hearing this was accepted by the applicant and me.
Applicant’s submissions
Like the further amended application served on the respondents on 15 July 2021 and referred to in the respondents’ initial submissions, and a proposed second further amended application, the third further amended application seeks different tortious relief from that sought in the amended application filed prior to the High Court’s decision in Commonwealth of Australia v AJL20.[13]
[13] [2021] HCA 21
Tortious relief aside, the proceedings remain in part as they were commenced, ie in the original jurisdiction of the Court “in relation to migration decisions”.[14] It is not claimed that the Court’s authority to decide the tortious claim arises as one “in relation to migration decisions” per s 476(1), but from the Court’s accrued jurisdiction and its power under s 14 of the Federal Circuit Court Act.
[14] Migration Act, s 476(1)
The applicant agrees that the Court’s jurisdiction “in relation to a migration decision” is confined to “public law remedies in the nature of judicial review of migration decisions”. However this construction is said not to exclude the Court’s accrued jurisdiction in respect of the whole matter before the Court.
In this case the public law remedies of injunctive and declaratory relief are sought in relation to two migration decisions set out in the proposed third further amended application:
(a)date of first decision: 23 October 2019 to 1 March 2021, being a failure to take the applicant as an unauthorised arrival to whom s 198AD of the Migration Act applied from Australia to a regional processing country as soon as reasonably practicable;[15] and
(b)date of second decision: 12 December 2020 to 1 March 2021, being a failure to remove the applicant as soon as reasonably practicable, the applicant then being an unlawful non-citizen who had asked the Minister in writing to be so removed.[16]
[15] section 198AD(2)
[16] section 198(1)
Each failure is said to be a “migration decision” under s 474(3)(g) of the Migration Act, each falling within the description of the “doing or refusing to do any other act or thing”.
Each failure is said to fall within the more general description in the original application: “[f]ailure to remove, or to take any reasonable steps toward removal of the applicant to the relevant regional processing country” in respect of which the Court was originally seized of jurisdiction under s 476(1).
The applicant contends that, while subsequent developments have seen the applicant alter some of his claims for relief, the Court’s jurisdiction has remained.
Following the grant of a visa to the applicant the public law relief of mandamus for removal would no longer be available, there being no unperformed public duty to remove the applicant under either s 198AD(2) as the applicant was no longer in detention, or under s 198(1) as the applicant was no longer an “unlawful non-citizen”.[17]
[17] AGH21 v Minister for Home Affairs [2021] FCA 452 at [9]-[13]
After the filing of the amended application which included a claim for tortious relief for illegal detention, the High Court handed down its decision in AJL20. The High Court there made clear at [48], [52] and [72] that any failure by the executive in relation to “hedging duties” (which makes up the “migration decisions” in these proceedings) did not affect the legality of the detention.
As a result of AJL20, the applicant could not maintain his claim in the amended application for the public law relief of prohibition in respect of the claimed illegality of detention said to arise from the same migration decisions the subject of the later further amended applications. Nor could the applicant claim damages, as the respondents’ failure to comply with its statutory duties under either s 198AD(2) or 198(1) had not rendered the applicant’s detention unlawful.
However the applicant submits that AJL20 did not undermine the applicant’s claim for the public law declaratory relief sought in both the amended application and the proposed further amended applications upon the judicial review of the breaches of these “hedging duties”, ie the “migration decisions”.
The whole matter includes breaches of a duty of care
The applicant contends that while the failure to comply with the statutory hedging duties per se does not sound in damages,[18] this failure sounds in damages in negligence as they are also breaches of the duty of care owed to the applicant to limit his detention as pleaded in the further amended applications.
[18] Northern Territory v Mengel (1995) 185 CLR 307 at 343-345
Because of the factual identity between the breaches of statutory duty and the breaches of the duty of care, remedies for each of these independent actions are available as arising from the same or the “whole” matter. The former remedies are upon judicial review of the migration decisions, the latter upon adjudication of the legally independent (though factually associated) tortious claim.
This Court’s jurisdiction to hear and determine the tortious claim is therefore said to be the same pendent or “accrued” jurisdiction of the High Court to make orders for the resolution of the “whole matter” between the parties. As the High Court stated in Fencott v Muller:[19]
It is settled doctrine in Australia that when a court which can exercise federal jurisdiction has its jurisdiction attracted in relation to a matter, that jurisdiction extends to the resolution of the whole matter. This accrued federal jurisdiction is not limited to matters incidental to that aspect of the matter which has, in the first place, attracted federal jurisdiction. In extends, in my opinion, to the resolution of the whole matter between the parties. This accrued jurisdiction carries with it the authority to make such remedial orders as are necessary or convenient for or in consequence of that resolution. For this purpose, the court exercising federal jurisdiction may enforce rights which derive from a non-federal source.
[19] (1983) 152 CLR 570 at 603-604, quoting Barwick CJ in Philip Morris Inc v. Adam P Brown Male Fashions Pty Ltd (1981) 148 CLR 457 at 475
The accrued jurisdiction of this Court was affirmed upon a survey of the relevant authorities in Waters & Durrant[20] at [16].
[20] [2015] FCCA 2419
This “accrued” jurisdiction depends on the grant of an authority to adjudicate rather than the law to be applied or the subject of adjudication. Non-federal law is part of the single, composite body of law applicable to cases determined in the exercise of federal jurisdiction, subject to any statutory limitation on jurisdiction applying to a federal court.[21]
[21] Rizeq v Western Australia [2017] HCA 23; (2017) 262 CLR 1 at [54]-[55]
There is no such limit in s 476(1) of the Migration Act: “the reference to ‘under paragraph 75(v)’, in s 476(1), in context, must have been to all remedies exercisable by the High Court which relate to s 75(v), not merely those named in s 75(v)”.[22]
[22] Mokhlis v Minister for Home Affairs [2020] HCA 30 at [13] per Edelman J
Parliament has also empowered the Court to adjudicate the tortious claim by the obligation under s 14 of the Federal Circuit Court Act to grant all remedies “to which any of the parties appear to be entitled in respect of a legal or equitable claim properly brought forward by him or her in the matter, so that, as far as possible: … (c) all matters in controversy between the parties may be completely and finally determined; and (d) all multiplicity of proceedings concerning any of those matters may be avoided”.
The applicant does not contend that the tortious claim engages the Court’s associated jurisdiction, it not being another “associated” federal matter. The applicant agrees that s 18 of the Federal Circuit Court Act is not apposite to the jurisdictional issues before the Court.
Section 494AB bar not raised by respondents
The respondents have not sought to raise the bar in s 494AB of the Migration Act (relating to litigation concerning “transitory persons”) to have the proceedings heard by the High Court. In any event this provision does not limit any Court’s jurisdiction.[23]
[23] Minister for Home Affairs v DLZ18 [2020] HCA 43 at [26] and [35]
Extension of time not appropriate
The applicant agrees that an extension of time to claim the tortious relief is not required, but for different reasons to those given by the respondents.
The time limits provided by s 477(1) of the Migration Act only apply to remedies “to be granted in exercise of the court’s original jurisdiction under s 476 in relation to a migration decision”. As the respondents observed in their submissions the phrase “in relation to a migration decision’ is confined to public law remedies in the nature of judicial review of migration decisions. The phrase should not be construed to extend to other tortious relief sought in the accrued jurisdiction of the Court or in exercise of the Court’s powers under s 14 of the Federal Circuit Court Act.
Resolution
I prefer and adopt the submissions of the respondents. The applicant accepts, correctly, that s 476(1) of the Migration Act does not confer on the Court jurisdiction to hear a claim in tort.[24] The applicant also accepts that his tortious claim does not engage the Court’s associated jurisdiction under s 18 of the Federal Circuit Court Act.[25] Instead, the applicant contends that the Court’s jurisdiction to determine the application inheres in the Court’s “accrued jurisdiction” and/or its power under s 14 of the Federal Circuit Court Act.[26] For the reasons that follow, I reject that submission.
[24] see [21] above
[25] see [38] above
[26] see [21] above
Relief sought by the applicant
In order to understand the jurisdictional obstacle to the applicant’s claim, it is helpful to begin with an evaluation of the relief the applicant seeks in the proposed third further amended application.
The substantive relief sought by the applicant is confined to a claim for damages for breach of duty of care. That claim is reflected in prayer 7 (but numbered 8) in the proposed third further amended application. The applicant no longer presses a claim for damages associated with an alleged failure to comply with the duties to remove under ss 198AD(2) and/or 198(1).
The balance of the relief sought by the applicant (aside from interest and costs) can, in substance, only be sought in aid of the tortious damages claim. Specifically:
(a)the injunctive relief sought by prayer 1 appears to be directed to preserving the subject matter of these proceedings, rather than based on any independent claim to final relief. In any event, the relief sought is inapt, for the applicant’s (putative) ability to recover damages is unaffected by whether or not he is removed (and is, in this respect, a step removed from an equivalent order that might be sought in an application for habeas corpus);
(b)the so-called injuctive relief sought by prayer 2 is, in substance, declaratory in nature: it is directed at a finding that, at a time when the applicant was detained, the respondents did not give effect to the obligations under ss 198AD(2) and/or 198(1);
(c)similarly, the declaratory relief sought by prayers 3 and 4 is directed at a finding that, at a time when the applicant was detained, the respondents did not give effect to the duty under s 198AD(2); and
(d)the declaratory relief sought by prayers 5 and 6 is expressly framed as tortious relief: namely, a putative duty to limit the duration of the applicant’s detention (prayer 5) and an alleged breach of that duty (prayer 6).
As the applicant properly acknowledges, now that he has been released from detention, a writ of mandamus is not available to compel performance of any unperformed duty under s 198AD(2) or 198(1).
Divorced from prayers 7 or 8, the relief sought by prayers 1 to 6 is entirely hypothetical. The Court would not grant relief where to do so would produce no foreseeable consequence.[27] The power to grant declaratory relief is in this respect “confined by the considerations that mark out the boundaries of judicial power”.[28]
[27] Ainsworth v Criminal Justice Commission (1992) 175 CLR 564 at 582 (Mason CJ, Dawson, Toohey and Gaudron JJ), citing Gardner v Dairy Industry Authority (NSW) (1977) 52 ALJR 180
[28] Ainsworth at 582
No accrued jurisdiction
Against that background, it is apparent that the applicant’s reliance on the notion of “accrued jurisdiction” is misplaced. The term “accrued jurisdiction” denotes the circumstances in which a federal court may exercise jurisdiction with respect to non-federal law. [29] Its operation is exemplified by this Court’s decision in Waters & Durrant, in which this Court held that it had jurisdiction to hear a claim under the Transfer of Land Act 1958 (Vic). In contrast, the present case is not a case in which the court is asked to apply non-federal law in order to determine the whole of the federal matter before it.
[29] The dichotomy suggested by the concept of accrued jurisdiction has drawn criticism insofar as, once a court is exercising federal jurisdiction, all jurisdiction exercised over that matter will in substance be federal (even where its subject matter concerns State law). In Rizeq, Bell, Gageler, Keane, Nettle and Gordon JJ said at [55] that the term was “best avoided”, and Kiefel CJ observed at [26], footnote 44 that “[u]se of the term ‘accrued jurisdiction’ has been criticised”, citing ASIC v Edensor Nominees Pty Ltd (2001) 204 CLR 559 at [52]-[53] (Gleeson CJ, Gaudron and Gummow JJ)
The concept of “accrued jurisdiction” reflects the “settled doctrine that when a court which can exercise federal jurisdiction has its jurisdiction attracted in relation to a matter, that jurisdiction extends to the resolution of the whole matter”.[30] Put another way: “[w]here federal and non-federal claims comprise the same justiciable controversy, a court exercising federal jurisdiction will have jurisdiction to resolve the entire matter in the exercise of its federal jurisdiction”.[31] The premise of the concept of “accrued jurisdiction” is that “non-federal law is part of the single, composite body of law applicable alike to cases determined in the exercise of federal jurisdiction and to cases determined in the exercise of non-federal jurisdiction”.[32]
[30] Philip Morris Inc at 475 (Barwick CJ), quoted in Fencott v Muller at 603 (Mason, Murphy, Brennan and Deane JJ)
[31] Rana v Google Inc (2017) 254 FCR 1 at [17] (Allsop CJ, Besanko and White JJ)
[32] Fencott v Muller at 607; see also Momcilovic v The Queen (2011) 245 CLR 1 at [100] (French CJ)
It is “obvious” that “there can be no accrued jurisdiction unless there are federal issues which that Court has jurisdiction to entertain”.[33]
[33] Carlton & United Breweries Ltd v Castlemaine Tooheys Ltd (1986) 161 CLR 543 at 553 (Gibbs CJ, Mason, Wilson, Brennan, Deane, Dawson JJ)
Accordingly, the notion of “accrued jurisdiction” does not assist the applicant unless he can first establish that this Court has jurisdiction to hear the claim. The applicant can point to no statutory provision by which jurisdiction is conferred. The applicant accepts that there is no cause of action in damages for breach of any alleged failure to comply with a statutory duty.[34] Instead, the applicant appears to rely on the availability, generally, of remedies for the “judicial review of… migration decisions”. However, the applicant does not seek such relief in these proceedings, other than such relief as would give effect to the tortious damages claim (and would, absent that claim, be inutile).[35] As explained above, the only (putative) legal basis for the applicant’s claim to relief is a claim in negligence. The jurisdiction to hear such a claim is not “accrued”, because there is no federal matter that the Court otherwise has jurisdiction to entertain.
[34] The applicant appropriately cites Mengel, in which Mason CJ, Dawson, Toohey, Gaudron and McHugh JJ (at 343-344) set out the well-established principle that “there is no action for breach of statutory duty unless the legislation confers a right on the injured person to have the duty performed” and that if “no right is conferred… there is no liability in damages”
[35] This is not a case, for example, in which review of an administrative decision is sought under the Administrative Decisions (Judicial Review) Act 1979 (Cth), cf SZRWS v Minister for Immigration and Border Protection [2017] FCCA 3101 at [37]
That position is unaltered by the passage from Edelman J’s reasons in Mokhlis at [13], which merely confirms the uncontroversial proposition that the reference in s 476(1) to the jurisdiction conferred on the High Court by s 75(v) must include a jurisidiction to issue a writ of habeas corpus and grant declaratory relief.[36] In circumstances where the applicant (correctly) accepts that his claim is not for a public law remedy in the nature of judicial review and, as such, is not within the jurisdiction conferred by s 476(1), the scope of the remedies available in judicial review proceedings has nothing to say about the jurisdictional basis for the applicant’s claim.
[36] See Mokhlis at [14]
There being no claim for substantive relief other than the claim for damages in negligence, the Court does not have jurisdiction, accrued or otherwise, to hear the claim.
Obligation to determine matters completely and finally
Section 14 of the Federal Circuit Court Act does not assist the applicant. Section 14 applies only in respect of relief to which “any of the parties appears to be entitled”. It does not answer the anterior question of when the Court has jurisdiction to hear the claim and to thereby grant relief. Rather, s 14 reflects a legislative prescription that, where the Court has jurisdiction, a “multiplicity of proceedings” should be avoided.[37] To read s 14 as conferring a jurisdiction-at-large would undermine the carefully delineated limitations on the Court’s jurisdiction in the statute by which jurisdiction is conferred: relevantly, the Migration Act.
[37] see Hepburn v Beauty Services Holdings Pty Ltd (No 2) [2019] FCA 1200 at [22] (Reeves J)
CONCLUSION
The respondents have succeeded in establishing that the Court lacks jurisdiction to deal with the application as proposed to be amended. I will grant the relief sought in the Application in a Case.
At the hearing on 16 August 2021 it was agreed that a further 56 matters at that time listed for mention with this matter should be determined in accordance with the outcome in this case. That list has been amended slightly since then. I will order that each of the applications in the annexure to this judgment be dismissed.
I will hear the parties as to costs.
I certify that the preceding fifty-seven (57) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Driver. Associate:
Dated: 31 August 2021
SCHEDULE OF PARTIES
SYG 2994 of 2020 Respondents
Fourth Respondent:
SECRETARY, DEPARTMENT OF HOME AFFAIRS
ANNEXURE
Section 91X pseudonym
Court Reference
1. AAE21 SYG3/2021 2. AAG21 SYG5/2021 3. AAI21 SYG8/2021 4. AAJ21 SYG9/2021 5. AAL21 SYG10/2021 6. ABF21 SYG22/2021 7. ABH21 SYG24/2021 8. ABK21 SYG32/2021 9. ABM21 SYG37/2021 10. ABN21 SYG34/2021 11. ACH21 SYG87/2021 12. ACI21 SYG55/2021 13. ADC21 SYG88/2021 14. ADI21 SYG76/2021 15. ADK21 SYG77/2021 16. AEE21 SYG94/2021 17. AEG21 SYG96/2021 18. FCS20 SYG2822/2020 19. FCU20 SYG2825/2020 20. FCV20 SYG2823/2020 21. FCW20 SYG2824/2020 22. FCY20 SYG2828/2020 23. FDA20 SYG2830/2020 24. FDJ20 SYG2840/2020 25. FDL20 SYG2841/2020 26. FDM20 SYG2842/2020 27. FDN20 SYG2843/2020 28. FDO20 SYG2844/2020 29. FDQ20 SYG2845/2020 30. FDS20 SYG2847/2020 31. FDV20 SYG2857/2020 32. FEE20 SYG2860/2020 33. FEH20 SYG2862/2020 34. FEI20 SYG2863/2020 35. FER20 SYG2866/2020 36. FGJ20 SYG2905/2020 37. FGM20 SYG2907/2020 38. FGP20 SYG2911/2020 39. FGT20 SYG2918/2020 40. FHC20 SYG2933/2020 41. FHG20 SYG2939/2020 42. FHJ20 SYG2941/2020 43. FIN20 SYG2981/2020 44. FIR20 SYG2987/2020 45. FJA20 SYG2990/2020 46. FJB20 SYG2991/2020 47. FJC20 SYG2993/2020 48. FJF20 SYG3017/2020 49. FJG20 SYG2996/2020 50. FJJ20 SYG2999/2020 51. FJN20 SYG3000/2020 52. FJP20 SYG3002/2020 53. FJV20 SYG3009/2020 54. FKW20 SYG3056/2020 55. FLC20 SYG3065/2020 56. FJR20 SYG3005/2020 57. FJT20 SYG3007/2020 58. ABA21 SYG20/2021
0
26
0