FJE20 v Minister for Home Affairs

In the case of FJE20 v Minister for Home Affairs, the applicant, an unlawful non-citizen who was brought to Australia for a temporary purpose and had been in immigration detention, sought an extension of time and leave to appeal against a decision of the Federal Circuit Court of Australia (FCC). The primary judge had held that the FCC did not have jurisdiction under section 476 of the Migration Act 1958 (Cth) to hear the applicant's claims for declaratory relief concerning his former detention in Australia and a claim for common law damages in negligence. The applicant argued that the declaratory relief sought was "in relation to" a migration decision and therefore the FCC had jurisdiction, and that the relief was not hypothetical or inutile. The court was required to decide whether the declaratory relief sought was properly characterised as "direct judicial review" of a migration decision and whether it gave rise to a "matter" under section 75(v) of the Constitution.

The court found that the declaratory relief sought was properly characterised as "direct judicial review" of a migration decision and that it did give rise to a "matter" under section 75(v) of the Constitution. The court held that the duty imposed by section 198(6) remained enforceable at all times during the period in which the relevant officers were failing to perform their duty to remove the applicant from Australia and they were amenable to mandamus to require them to perform their duty. The court also held that the applicant could no longer maintain his claim in respect of the claimed illegality of detention said to arise from the migration decisions made under sections 198AD(2) and 198(1), nor could the applicant claim damages for false imprisonment by reason of the Executive's failure to comply with its statutory duties under those provisions because that failure had not rendered the applicant's detention unlawful. However, the court concluded that the FCC had jurisdiction under section 476 to hear and determine the applicant's claims for relief, even if they were wrong in law and bound to fail.

The court granted the application for an extension of time to seek leave to appeal and for leave to appeal. The court set aside the order of the FCC dated 31 August 2021 and stood over the proceedings to a date to be fixed for the making of any necessary further orders. The court also ordered that the FCC be removed as the fourth respondent and that the parties file written submissions as to any necessary further orders, including as to the further conduct of the proceeding, by 31 March 2022. The costs of the hearing on 1 March 2022 were reserved.