GKX18 v Minister for Immigration and Multicultural Affairs
[2025] FedCFamC2G 307
•6 March 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
GKX18 v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 307
File number: SYG 2298 of 2024 Judgment of: JUDGE RILEY Date of judgment: 6 March 2025 Catchwords: MIGRATION – jurisdiction of the court to deal with a claim for damages for false imprisonment – original proceeding being an application for habeas corpus. Legislation: Federal Circuit and Family Court of Australia Act 2021 s.134; Cases cited: NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs (2023) 415 ALR 254; (2023) 97 ALJR 1005; [2023] HCA 37 Division: Division 2 General Federal Law Number of paragraphs: 33 Date of last submission/s: 4 February 2025 Date of hearing: On the papers Place: Melbourne Counsel for the Applicant: Quintin Rares and Madeleine Bridgett Solicitor for the Applicant: Heretic Law Advocates for the First and Second Respondents: Patrick Knowles of Senior Counsel and Jonathan Barrington of Counsel Solicitor for the First and Second Respondents: Australian Government Solicitor ORDERS
SYG 2298 of 2024 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: GKX18
Applicant
AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
First Respondent
SECRETARY OF DEPARTMENT OF HOME AFFAIRS
Second Respondent
ORDER MADE BY:
JUDGE RILEY
DATE OF ORDER:
6 MARCH 2025
THE COURT DECLARES THAT:
This court has jurisdiction in the present matter to deal with the applicant’s claim for damages for unlawful imprisonment.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE RILEY:
INTRODUCTION
In this proceeding, the applicant sought a writ of habeas corpus and damages for unlawful imprisonment. The respondents argued that this court has no jurisdiction to deal with the damages issue, and asked that that question be determined before any further steps were taken in the proceeding.
BACKGROUND
The applicant is a citizen of Iraq. He married an Australian citizen on 22 April 2015 in Jordan. He arrived in Australia on a Partner (Provisional) Subclass 309 visa on 31 January 2017. The applicant’s wife gave birth to her and the applicant’s daughter on 6 November 2016 in New South Wales.
On 30 May 2017, the applicant was charged with six criminal offences consisting of family violence. The applicant’s wife withdrew her sponsorship of the applicant’s partner visa. The applicant withdrew his application for a partner visa on 10 July 2017 and was granted a bridging A visa. On 20 July 2017, he applied for a protection visa. On 24 August 2017, the applicant was granted a bridging C visa.
On 3 October 2017, after pleading guilty, the applicant was convicted of three criminal charges consisting of family violence. The other three charges were dismissed. The applicant was sentenced to 12 months imprisonment with a non-parole period of nine months.
On 13 October 2017, the department of immigration determined that the applicant’s application for a protection visa was invalid.
On 20 October 2017, a delegate of the Minister cancelled the applicant’s bridging C visa.
On 16 April 2018, the applicant made a second application for a protection visa.
The applicant was released from prison in May or June 2018. He was immediately taken into immigration detention, where he remained until he was granted a Bridging Visa E and released from immigration detention on 16 October 2024.
On 4 September 2018, a delegate of the Minister refused the applicant’s second application for a protection visa. The applicant sought review of the refusal by the Tribunal, which affirmed the refusal on 13 November 2018.
The applicant sought judicial review of the Tribunal’s decision to refuse his application for a protection visa. On 26 July 2019, this court dismissed the applicant’s judicial review application. The applicant then appealed the decision of this court to the Federal Court, which, on 5 March 2020, dismissed the applicant’s appeal.
As the matter stands, the applicant is statutorily barred from applying for another protection visa, although the Minister could permit him to do so by lifting the bar under s.48A of the Act.
The applicant made six separate requests between March 2020 and January 2022, under ss.195A, 195AB and 417 of the Act, for the Minister to exercise his personal discretion to grant the applicant a protection visa. None of those applications were referred to the Minister and the Minister did not intervene and grant the applicant a visa.
On 19 April 2022, the Tribunal affirmed the delegate’s decision to cancel the applicant’s bridging C visa. In doing so, the Tribunal found that Australia owed the applicant non-refoulement obligations.
On 9 March 2024, the applicant asked the Minister to lift the statutory bar under s.48A of the Act to enable the applicant to make another application for a protection visa. The Minister has not responded to this request.
On 7 August 2024, the applicant’s solicitor wrote to the Minister requesting the immediate release of the applicant, for the reasons given in the High Court’s decision in NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs (2023) 415 ALR 254; (2023) 97 ALJR 1005; [2023] HCA 37. The applicant’s solicitor said in her letter that, if the applicant were not released by 5pm on Wednesday 14 August 2024, the applicant would commence habeas corpus proceedings on an urgent basis.
On 16 August 2024, the Minister replied stating that the:
continuing detention [of the applicant] is occurring because of a voluntary decision on his part not to cooperate with his removal ...
On 19 August 2024, the applicant’s solicitor wrote to the Minister reiterating the applicant’s view that there was no real prospect of him being removed from Australia in the reasonably foreseeable future:
because the Australian Government has a long-standing policy of not returning people to a country in breach of its non-refoulement obligations. Your client has not provided any evidence that this policy will change.
On 11 September 2024, the applicant lodged an originating application in this court seeking:
(a)a writ of habeas corpus or a writ in the nature of habeas corpus;
(b)a mandatory injunction restraining the respondents from detaining the applicant under s.189(1) of the Migration Act 1958 (“the Act”); and
(c)costs.
The matter came on for hearing on 11 October 2024, but the hearing did not finish on that day. The matter was adjourned until 16 October 2024 for further hearing. On 16 October 2024, before the hearing began, the Minister communicated to the court and the applicant that he had given the applicant a Bridging E visa for four months. That meant that the application for habeas corpus did not need to be determined at that time. The Minister sought that the application for habeas corpus be dismissed. I declined to do that, because the Bridging E visa was only for four months, and it was unclear whether the habeas corpus application might need to be revived at some point. Also, it was unclear whether the dismissal of the habeas corpus application would impact on the applicant’s claim for damages. Moreover, it seemed odd to dismiss the application for habeas corpus in circumstances where the application, in effect, was successful.
Another complication, which only emerged minutes before the hearing began on 16 October 2024, was that the applicant’s Bridging E visa was subject to condition 8510, which required the applicant to apply for a passport. The only passport he could apply for was an Iraqi passport. There is authority to the effect that applying for a passport from the country in respect of which one is owed non-refoulement obligations obviates those obligations. If the applicant had applied for an Iraqi passport, arguably, he would no longer have been owed non-refoulement obligations by Australia.
The applicant brought a proceeding seeking a declaration that the imposition of condition 8510 on the applicant’s Bridging E visa was unreasonable and the condition was invalidly imposed. After the applicant filed his written submissions on this issue, the Minister conceded the point. The court made a declaration on 26 February 2025 that condition 8510 was not validly imposed on the applicant’s Bridging E visa.
The applicant’s Bridging E visa granted on 16 October 2024 expired on or about 15 February 2025. On 19 February 2025, the applicant was granted a Bridging Visa R. It does not have a specified end date. It has no curfew or electronic monitoring conditions.
MATERIAL RELIED UPON
The respondents relied upon:
(a)their submissions in relation to the court’s jurisdiction to determine the applicant’s claim for damages filed on 28 January 2025;
(b)the affidavit affirmed by Adrian Downie on 17 January 2025;
(c)the affidavit affirmed by Adrian Downie on 28 January 2025; and
(d)annexure F to the affidavit affirmed by Alison Mary Battisson on 5 February 2025, being the applicant’s proposed further amended application which was emailed to the respondents on 15 January 2025.
The applicant relied upon:
(e)his submissions in relation to this court’s jurisdiction to determine his damages claim filed on 4 February 2025;
(f)his application filed on 11 September 2024 and amended on 8 October 2024 (“the application”);
(g)the transcript of this proceeding dated 16 October 2024, and in particular:
(i)lines 35 to 41 of page 11;
(ii)lines 1 to 4 of page 17; and
(iii)line 21 of page 17 to line 4 of page 19.; and
(h)the respondents’ submissions filed on 17 January 2025;
(i)the orders made in this matter by Judge Riley on 20 January 2025;
(j)his amended submissions in relation to Bridging Visa E condition 8510 filed on 5 February 2025; and
(k)the affidavit affirmed by Alison Mary Battisson on 5 February 2025 and in particular annexure F to that affidavit, being the applicant’s proposed further amended application which was emailed to the applicants on 15 January 2025.
CONSIDERATION
The respondents submit that the court has no jurisdiction to hear the applicant’s damages claim.
This court has a limited jurisdiction. However, the court’s jurisdiction is somewhat expanded by s.134 of the Federal Circuit and Family Court of Australia Act 2021 (“the FCFCOA Act”). That section provides that:
To the extent that the Constitution permits, jurisdiction is conferred on the Federal Circuit and Family Court of Australia (Division 2) in respect of matters not otherwise within its jurisdiction that are associated with matters in which the jurisdiction of the Federal Circuit and Family Court of Australia (Division 2) is invoked.
In Philip Morris Inc v Adam P Brown Male Fashions Pty Ltd (1981) 148 CLR 457; [1981] HCA 7; at pages 495-496, Gibbs J said that:
Speaking generally it may be said that, given identity of parties, one matter is associated with another if the two matters arise out of substantially the same, or closely connected, facts.
Under s.134 of the FCFCOA Act, this court has jurisdiction in matters that are associated with matters which are within the court’s jurisdiction, subject to the Constitution. There is no Constitutional impediment to the court exercising jurisdiction in the damages claim.
The court’s jurisdiction was appropriately invoked in the application for the writ of habeas corpus.
The respondents did not claim that there was any issue about the identity of parties.
The two matters in the present case, namely, the application for a writ of habeas corpus, and the application for damages for unlawful imprisonment, arise out of the same facts, namely, that the applicant was unlawfully detained. (The Minister, in effect, appears to have conceded this.)
It follows that the court has associated jurisdiction to determine the question of damages for the applicant’s unlawful imprisonment.
The same result would have applied even if the habeas corpus application had been dismissed: see Federal jurisdiction and the jurisdiction of the Federal Court of Australia in 2002 (2002) 23 Australian Bar Review 29 at 57-58.
I certify that the preceding thirty-three (33) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Riley. Associate:
Dated: 6 March 2025
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