MB (a pseudonym) v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2021] VSC 68
•19 February 2021
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
PRACTICE COURT
S ECI 2020 04678
| MB (a pseudonym) | Plaintiff |
| v | |
| MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS | First Defendant |
| COMMONWEALTH OF AUSTRALIA | Second Defendant |
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JUDGE: | John Dixon J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 15 February 2021 |
DATE OF JUDGMENT: | 19 February 2021 |
CASE MAY BE CITED AS: | MB (a pseudonym) v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs |
MEDIUM NEUTRAL CITATION: | [2021] VSC 68 |
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PRACTICE AND PROCEDURE – Transfer of proceeding – Court’s own motion – Whether transfer in interests of justice – Jurisdiction – Whether Federal Court of Australia has jurisdiction to issue a writ of habeas corpus in respect of detention purportedly authorised by the Migration Act – Where application is not in context of direct judicial review – Where proceeding involves interpretation of Commonwealth legislation – Where transferee court has specialist expertise in relevant law – Jurisdiction of Courts (Cross-vesting) Act 1987 (Vic), ss 5(1), 11(3) – Judiciary Act 1939 (Cth) s 39B – Migration Act 1958 (Cth) ss 189, 476A(1), 484.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr M Albert with Mr J Barrington | Russell Kennedy |
| For the Defendants | Mr C Tran with Ms N Wootton | Australian Government Solicitor |
TABLE OF CONTENTS
Introduction........................................................................................................................................ 1
Relevant provisions........................................................................................................................... 1
Principles............................................................................................................................................. 5
Submissions........................................................................................................................................ 7
Plaintiff........................................................................................................................................... 7
Jurisdiction..................................................................................................................................... 8
Plaintiff’s submissions........................................................................................................ 8
Defendants’ submissions.................................................................................................. 10
Interests of justice........................................................................................................................ 11
Plaintiff’s submissions...................................................................................................... 11
Defendants’ submissions.................................................................................................. 13
Consideration.................................................................................................................................... 14
Jurisdiction................................................................................................................................... 14
Interests of justice........................................................................................................................ 17
Conclusion and orders.................................................................................................................... 21
HIS HONOUR:
Introduction
The plaintiff is currently detained at Melbourne Immigration Transit Accommodation in the custody of the first defendant (‘Minister’), who is the Minister responsible for administering the Migration Act 1958 (Cth). On 18 December 2020, the plaintiff commenced this proceeding. He contends that his continued detention is not lawful, and applied for a writ of habeas corpus directed to the defendants pursuant to Order 57 of the Supreme Court (General Civil Procedure) Rules 2015 (Vic).
The proceeding came before Garde J on 23 December 2020, sitting in the Practice Court during the vacation period. His Honour gave directions for affidavits and written submissions to be filed and exchanged, and listed the proceeding on 2 February 2021 for further directions, including setting the matter down for hearing on an estimate of two to three days.
On 2 February 2021, when the proceeding returned to the Practice Court, it came to my attention as the applicant sought allocation of a judge for the trial of the proceeding with priority. I considered that there was a question whether the Federal Court of Australia was a more appropriate forum for the proceeding, such that s 5(1) of the Jurisdiction of Courts (Cross-vesting) Act 1987 (Vic) (‘Jurisdiction of Courts Act’) may require this court to transfer it to the Federal Court. I received written and oral submissions from the parties on that question.
The court has not made any substantive order on the application.
Having considered those submissions, the court is, for the reasons that follow, required by s 5(1) of the Jurisdiction of Courts Act to transfer the proceeding to the Federal Court.
Relevant provisions
The Jurisdiction of Courts Act, together with the substantially identical legislation enacted by the Commonwealth and other States and Territories, established a system of cross-vesting between Federal, State and Territory jurisdictions.
Relevantly, s 5 (‘Transfer Provision’) states:
5 Transfer of proceedings
(1) Where—
(a)a proceeding (in this subsection referred to as the relevant proceeding) is pending in the Supreme Court; and
(b) it appears to the Supreme Court that—
* * * *
(ii) having regard to—
(A)whether, in the opinion of the Supreme Court, apart from any law of the Commonwealth or another State relating to cross-vesting of jurisdiction and apart from any accrued jurisdiction of the Federal Court or the Family Court, the relevant proceeding or a substantial part of the relevant proceeding would have been incapable of being instituted in the Supreme Court and capable of being instituted in the Federal Court or the Family Court;
(B)the extent to which, in the opinion of the Supreme Court, the matters for determination in the relevant proceeding are matters arising under or involving questions as to the application, interpretation or validity of a law of the Commonwealth and not within the jurisdiction of the Supreme Court apart from this Act and any law of the Commonwealth or another State relating to cross-vesting of jurisdiction; and
(C)the interests of justice—
it is more appropriate that the relevant proceeding be determined by the Federal Court or the Family Court, as the case may be—
the Supreme Court shall transfer the relevant proceeding to the Federal Court or the Family Court, as the case may be.
[…]
(7)A court may transfer a proceeding under this section on the application of a party to the proceeding, of its own motion or on the application of the Attorney-General of the Commonwealth or of a State or Territory.
Section 11 provides:
11 Conduct of proceedings
[…]
(3)Where a proceeding is transferred or removed to a court (in this subsection referred to as the transferee court) from another court (in this subsection referred to as the transferor court), the transferee court shall deal with the proceeding as if, subject to any order of the transferee court, the steps that had been taken for the purposes of the proceeding in the transferor court (including the making of an order), or similar steps, had been taken in the transferee court.
As will become apparent, a number of provisions of the Judiciary Act 1903 (Cth) and the Migration Act are relevant to the issue, and it is convenient to now set out those provisions in detail.
Starting with the Judiciary Act, s 39B provides the Federal Court with original jurisdiction as follows:
39B Original jurisdiction of Federal Court of Australia
(1)Subject to subsections (1B), (1C) and (1EA), the original jurisdiction of the Federal Court of Australia includes jurisdiction with respect to any matter in which a writ of mandamus or prohibition or an injunction is sought against an officer or officers of the Commonwealth.
(1A)The original jurisdiction of the Federal Court of Australia also includes jurisdiction in any matter:
[…]
(c) arising under any laws made by the Parliament, other than a matter in respect of which a criminal prosecution is instituted or any other criminal matter.
Turning to the Migration Act, the plaintiff is currently an ‘unlawful non-citizen’ within the meaning of s 14. His detention is purportedly authorised and required by s 189(1) of the Migration Act:
189 Detention of unlawful non‑citizens
(1)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, the officer must detain the person.
Although the Federal Court is conferred wide jurisdiction by s 39B of the Judiciary Act, that jurisdiction in respect of the Migration Act is relevantly limited by s 476A(1):
476ALimited 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.
‘migration decision’ is defined by s 5 as:
(a) a privative clause decision; or
(b) a purported privative clause decision; or
(c) a non-privative clause decision; or
(d) an AAT Act migration decision.
‘privative clause decision’ is the subject of a broad and lengthy definition contained in s 474. It was not in dispute that the conduct of the second defendant in detaining the plaintiff in reliance on the power conferred by s 189(1) was a privative clause decision.
Finally, s 484 provides:
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.
Principles
Although the Transfer Provision sets out three matters for which the court must have regard, this proceeding engages with last criterion: whether a transfer is in the interests of justice. In Bankinvest AG v Seabrook, Street CJ described the policy intention of the transfer regime:
[T]here must be a judicial determination by the court in which proceedings are commenced either to transfer or not to transfer the proceedings to one of the other nine based, broadly speaking, upon consideration of the interests of justice … It calls for what I might describe as a “nuts and bolts” management decision as to which court, in the pursuit of the interests of justice, is the more appropriate to hear and determine the substantive dispute.[1]
The Transfer Provision does not confer a power on the court that may be exercised at its discretion. If it appears to the court that it is in the interests of justice to transfer a proceeding, it must effect the transfer.[2]
[2]BHP Billiton Ltd v Schultz, 421 [14], 434 [62] (n 1); Taylor v Woolworths Ltd [2012] VSC 286, [5].
Although one court cannot properly determine the jurisdiction of another, a court ought not contemplate the transfer of a proceeding where it is arguable or uncertain that the other court does not have jurisdiction.[3]
[3]KMR v SHF [2011] QSC 153, [10]; Benlair Pty Ltd v Terrigal Grosvenor Lodge Pty Ltd [2006] NSWSC 339, [58].
In Dawson v Baker,[4] Higgins J identified the following relevant matters of significance to whether it was in the interests of justice to transfer a proceeding:
[4](1994) 123 FLR 194, 207–8.
• Application of substantive law
If the law to be applied is that of the transferee jurisdiction, transfer will be favoured if that law is peculiar to that jurisdiction. This would be particularly significant if the validity or interpretation of local legislation was in issue.
• Forensic advantage or detriment conferred by procedural law
If there is a proper forensic advantage which a party might gain or lose by a transfer then that is relevant.
• The choice made by the plaintiff of a forum and the reasons for that choice
The more cogent the reasons for a choice of forum the more weight can be afforded that choice whether or not the procedural laws are relevantly different…
• Balance of convenience to parties and witnesses
The comparative cost and delay will be relevant. However, there is the proviso that one court will not usually draw any adverse conclusion about the ability of another to deal as fairly and expeditiously with the matter as would the transferor court. Delay resulting from the transfer itself would be a relevant consideration.
• Convenience to the court system
Although this is regarded as an appropriate factor to be considered in the United States, it would be contrary to the duty of a court to hear a matter properly before it to accede to a request for transfer on those grounds. That is not to say, however, that the existence or absence of a specialist jurisdiction would be irrelevant. It might well justify a transfer, for example, of a matrimonial cause which may be more appropriately dealt with in the Family Court even if it had been regularly commenced under the Matrimonial Causes Act 1959 (Cth) in the Supreme Court of a State or Territory. [5]
[5]This passage was cited with approval by the NSW Court of Appeal in James Hardie & Coy Pty Ltd v Barry (2000) 50 NSWLR 357, 379 [95].
In BHP Billiton Limited v Schultz, the High Court considered the Transfer Provision.[6] Adopting the language ‘natural forum’ used by the House of Lords in Spiliada Maritime Corp v Cansulex Ltd,[7] Gleeson CJ, McHugh and Heydon JJ observed:
In many cases, there will be such a preponderance of connecting factors with one forum that it can readily be identified as the most appropriate, or natural, forum. In other cases, there might be significant connecting factors with each of two different forums. Some of the factors might cancel each other out. If the action is between two individuals, and the plaintiff resides in one law area and the defendant in another, there may be no reason to treat the residence of either party as determinative, although, as already noted, it will ordinarily be the residence of the defendant that is important to establish jurisdiction. Weighing considerations of cost, expense, and convenience, even when they conflict, is a familiar aspect of the kind of case management involved in many cross-vesting applications.[8]
[6]See generally, n 1.
[7][1987] AC 460.
[8]BHP Billiton Limited v Schultz, 423 [19] (n 1).
Callinan J considered the factors that identified the ‘natural forum’ for a proceeding:
But of at least equal importance to all of these is the fact that the events giving rise to the claim were at the time subject to, and regulated by the law of the jurisdiction where they occurred, and in respect of the evaluation of which the Court of that place should be the most experienced and efficient. One relevant law will usually be the law relating to insurance. Policies are likely to have been implemented on the basis of the law there relating to damages, remedies, courts and appeals. In other ways also, with respect, for example, to relations between employers and employees, revenue laws and commercial laws, and compliance with safety and environmental standards, it may be assumed that the parties have organised their affairs with an eye to the State laws governing them. The parties’ reasonable expectation would almost certainly be that in the event of a dispute about any of these matters, it would be resolved according to those laws as interpreted and applied by the court of that State.[9]
[9]Ibid 493 [259].
In Ewins v BHP Billiton Ltd, Gillard J, when identifying potentially relevant matters in determining whether a proceeding should be transferred, referred to:
[T]he experience of a particular court and its ability to provide an efficient and speedy trial, for example a court with particular evidentiary and procedural rules hearing particular types of cases.[10]
[10][2005] VSC 4, [29].
His Honour continued:
In summary, what is the appropriate court is the natural forum based upon connecting factors. The preponderance of connecting factors in any particular case with one forum identifies that forum as the natural forum but there may be a significant connecting factor to another forum which may swing the balance to the competing forum. That is made clear by the judgments of the High Court in Schultz and the choice of a forum which can deliver speedy justice in cases where the plaintiff is suffering from a life threatening disease is relevant and is a matter of substance. As the joint judgment made clear, it is right to attach importance to the procedural and evidentiary advantages offered to all parties in a particular court. It is relevant to have regard to a particular court's specialisation and experience in a particular field.[11]
[11]Ibid [31] (emphasis added).
Submissions
Plaintiff
The plaintiff submitted that there were seven independent reasons why the Federal Court is not, in the interests of justice, a more appropriate court to determine this proceeding. These reasons were:
(a) this court has clear and undoubted jurisdiction, whereas the Federal Court does not;
(b) there is no authority in favour of the Federal Court having jurisdiction in a pure habeas application (I pause to note that this is a restatement of the contestable part of the first reason);
(c) it is contrary to the interests of justice for the Supreme Court to resolve, by an interlocutory decision, the jurisdiction of another court;
(d) inevitable delay would be occasioned by the need for the Federal Court to be satisfied as to its jurisdiction;
(e) if the proceeding was transferred, there would inevitably be at least two additional hearings: a hearing about jurisdiction and a further case management hearing (this apparently is not a question of inevitable delay, but a burden on the administration of justice);
(f) an application for habeas corpus should be determined without delay and with maximum haste at every stage, and considering the question of whether to transfer the application to another court fails to deal with the issue of the plaintiff’s unlawful detention with maximum haste; and
(g) it is too late to transfer a proceeding that is ready for trial.
It is convenient to group these contentions under two headings: jurisdiction and interests of justice.
Jurisdiction
Plaintiff’s submissions
The plaintiff submitted that this court has jurisdiction to entertain a proceeding seeking a writ of habeas corpus in relation to a person detained under the Migration Act, notwithstanding s 484. This submission was neither disputed nor contentious.[12] Rather, what was contentious was the jurisdiction of the Federal Court to entertain the proceeding.
[12]EZ (a pseudonym) v Commonwealth of Australia [2020] VSC 871 (‘EZ’).
In the recent decision of the Full Court of the Federal Court in McHugh v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (‘McHugh’),[13] the Full Court held that the Federal Court had jurisdiction to issue a writ of habeas corpus in respect of an applicant detained under the purported exercise of s 189(1) of the Migration Act, notwithstanding the limitations to its jurisdiction by virtue of s 476A.
[13][2020] FCAFC 223 (‘McHugh’).
The plaintiff submitted that this proceeding was distinguishable from the facts in McHugh, and that by reference to those distinctions and the Court’s reasoning, I must conclude that the Federal Court did not have jurisdiction in relation to the proceeding. Although the plaintiff did not dispute that the Federal Court had jurisdiction to issue a writ of habeas corpus, he contended that it required an independent source of jurisdiction before it could do so. Unlike this court, the Federal Court does not possess the broad scope of inherent jurisdiction and derives its jurisdiction from statute.[14]
[14]McHugh, [21] (n 13).
The applicant in McHugh sought judicial review of a decision of the Minister, made pursuant to s 501CA(4) of the Migration Act, to refuse to revoke the cancellation of his visa. That decision was a migration decision that is within the jurisdiction on the Federal Court by force of the exception in s 476A(1)(c). In contrast, this proceeding is a ‘pure habeas application’, as no judicial review is sought of any decision by the defendants, and is therefore excluded from the Federal Court’s jurisdiction by s 476A.
The Federal Court’s decision in Matete v Minister for Immigration & Citizenship (‘Matete’)[15] demonstrated that it did not have jurisdiction to determine an application for a writ of habeas corpus arising from detention under the Migration Act. In an earlier Federal Court proceeding, the applicant was unsuccessful in appealing the Migration Review Tribunal’s refusal to overturn the cancellation of his visa. By a fresh application to the court, he sought ‘an order in the nature of habeas corpus’ in connection with a challenge to the legality of his detention. Stone J upheld the defendants’ objection to the competency of the proceeding, finding that the application was in relation to a migration decision and fell from the court’s jurisdiction by operation of s 476A.
[15][2009] FCA 187.
Defendants’ submissions
The defendants, also relying on McHugh, submitted that the Federal Court did have jurisdiction to hear and determine the proceeding. The words ‘in relation to a migration decision’ have been narrowly defined by decisions of the High Court and the Federal Court to mean only those decisions that are the subject of ‘direct judicial review’.[16]
[16]Bodruddaza v Minister for Immigration and Multicultural Affairs (2007) 228 CLR 651, 662–3 [21]–[25]; Tang v Minister for Immigration and Citizenship (2013) 217 FCR 55, 57–8 [8]–[9]; DBE17 v Commonwealth of Australia (2019) 266 CLR 156, 164 [14]–[15].
The defendants submitted the effect of the decision in McHugh was that any matter concerning the Migration Act that was not a direct judicial review of a migration decision would not be excluded by operation of s 476A of the Migration Act, and would otherwise be within the broad statutory jurisdiction conferred on the Federal Court by s 39B(1A)(c) of the Judiciary Act. Accordingly, the Federal Court could, incidental to that jurisdiction, issue a writ of habeas corpus in the proceeding. It was important to appreciate that in McHugh, certiorari in respect of a migration decision — the Minister's refusal to revoke the mandatory cancellation of his visa — was sought. Consequently, although it was within the Federal Court’s original jurisdiction by reason of s 39B(1A)(c) of the Judiciary Act, there was direct judicial review of a migration decision, meaning jurisdiction might be excluded by the application of s 476A(1). However, jurisdiction was preserved by s 476A(1)(c) because it involved a decision of the Minister under s 501CA.
Matete, the defendants submitted, was explicable on its facts for the same reasons and the plaintiff’s reliance on Matete, they submitted, was not to the point. Although the applicant in that proceeding had sought a writ of habeas corpus, it was in the context of an application for direct judicial review of the Tribunal’s decision to cancel his visa. The court did not decline to issue a writ of habeas corpus because of the absence of a jurisdictional hook, as the plaintiff claimed here, but rather because the application amounted to (direct judicial) review of a migration decision and was expressly excluded from the jurisdiction of the court by virtue of s 476A.
The act of detaining a person constitutes a migration decision, but the question to be answered in determining whether the Federal Court’s jurisdiction is excluded by 476A is whether the proceeding is in relation to a migration decision.
The defendants accepted that if the plaintiff was successful in establishing that the Federal Court lacked jurisdiction because the proceeding was ‘in relation to a migration decision’, it would necessarily follow that this court’s jurisdiction was excluded by operation of s 484 of the Migration Act. Section 484 confers exclusive jurisdiction on the High Court, the Federal Court and the Federal Circuit Court ‘in relation to migration decisions’. Adopting the same meaning of those words as has been applied to s 476A, this court would not have jurisdiction if the plaintiff’s submission was accepted.[17]
[17]So much was accepted by Moore J in EZ at [71].
That said, the Federal Court does not lack jurisdiction, as a proceeding challenging the lawfulness of detention purportedly authorised by the Migration Act is not ‘in relation to a migration decision’, in the sense in which that phrase is construed so as to bring s 476A into play. Its jurisdiction is founded in s 39B(1A)(c) of the Judiciary Act, based on the question of whether the defendants were justified in detaining the plaintiff by reference to s 189 of the Migration Act. It is in the context and in the course of, or incidental, to the determination of that question, that there will be power to issue habeas corpus. So much is clear from McHugh.
Interests of justice
Plaintiff’s submissions
The plaintiff submitted that it is not in the interests of justice to transfer the proceeding from this court, which has clear and undoubted jurisdiction, to the Federal Court, which has arguable and uncertain jurisdiction. Although the matter concerns Commonwealth legislation, it was clearly within the jurisdiction of this court other than as a result of the cross-vesting regime.[18] In any case, transfer to the Federal Court would be futile, as a judge of that court would first need to be independently satisfied that they had jurisdiction. Curiously, the plaintiff submitted he would maintain his position in that court, and on any subsequent appeal, that the Federal Court lacks the requisite jurisdiction. The futility of a transfer would be accompanied by further delay and expense — plainly the consequence of the plaintiff’s contentions — even if the Federal Court were to determine that it had jurisdiction.
[18]Which is relevant to the court’s consideration of s 5(1)(b)(ii)(B) of the Jurisdiction of Courts Act.
The plaintiff submitted that there was no reason to believe that the Federal Court could accommodate and determine the proceeding more quickly than this court. The application would require case management hearings and the plaintiff would be burdened by procedural differences between the two courts, including the filing of further documents to satisfy requirements under the Federal Court Rules 2011 (Cth).
In written submissions, the plaintiff asserted that a factor weighing against transfer was that the defendants had made the application for transfer at a late stage. At the hearing, however, the plaintiff accepted that the court had raised the issue of transfer on its own motion, but pressed that the defendants had nevertheless ‘picked up the mantle and run with it’.
The plaintiff relied on three decisions of various State and Territory courts where applications for habeas corpus in respect of detention under the Migration Act had been heard and determined,[19] having each accepted that they had jurisdiction to resolve them. Having regard to those authorities, it would be necessary for this court to find something unusual in this case to transfer the proceeding, and would need to determine why those courts, in determining those applications, acted other than in the interests of justice.
[19]Cox v Minister for Immigration, Multicultural & Indigenous Affairs (2003) 13 NTLR 219; Hassan v Australasian Correctional Services Pty Ltd [2002] SASC 127 (‘Hassan’); Dien v The Manager of the Immigration Detention Centre at Port Hedland (1993) 115 FLR 416.
Finally, the plaintiff emphasised the urgent nature of habeas corpus applications and the common law’s concern to protect liberty by determining such applications expeditiously, a proposition that is not contentious.
Defendants’ submissions
The defendants submitted that it was in the interests of justice to transfer the proceeding, as the judicial expertise in and experience with the Migration Act is greater in the Federal Court than in this court. The proper operation of ss 189 and 196 are the subject of Federal Court authority and the Federal Court has a significant familiarity with the regime for removal to Australia for temporary purpose under s 198B of the Act, which this court does not. The Federal Court’s greater expertise and experience may result in a shorter hearing and less time required for judicial deliberation. In turn, a shorter hearing estimate may mean the Federal Court can list the trial at an earlier date than might occur in this court.
The defendants contended that there was no advantage to the plaintiff by remaining in this court. They submitted that the plaintiff’s choice of forum is not deserving of weight, and there was no reason to think the Federal Court would give the matter less expedition than this court, in circumstances where evidence and submissions have already been filed and the matter is ready for trial. The defendant noted the procedural history in CCA19 v Secretary, Department of Home Affairs,[20] where an urgent application concerning the applicant’s transfer from a regional processing country to Australia under Migration Act was heard and finally determined by the Federal Court within three weeks. An appeal was heard and determined later the same year.
[20](2019) 165 ALD 503.
The defendants sought to give comfort to the plaintiff that, upon transfer, they would not seek orders contrary to the default position in s 11(3) of the Jurisdiction of Courts Act that the proceeding should be treated as if it had been commenced in the Federal Court.
Consideration
Jurisdiction
The plaintiff’s characterisation of this proceeding as a ‘pure’ habeas corpus application is misguided. What the plaintiff intended to convey by that description is that the application does not involve any other basis in law for the court to grant relief. As I explained in Certain Children v Minister For Families And Children (No 2):
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. As the defendants submitted, the writ is a means ‘to test the legality of a given restraint on liberty’ or ‘to test the lawfulness of the arrest and detention’; it is ‘the ancient and most celebrated and most efficacious procedural instrument of the common law’ that ‘provides an immediate, expeditious and effective machinery for vindicating and securing the liberty of the subject’.[21]
[21](2017) 52 VR 441, 595 [537].
The remedy that the plaintiff seeks on the return of the writ (which may, where appropriate, be granted on the application for the issue of the writ) is an order that the defendants release the plaintiff from detention. The remedy is not the issue of the writ. An order for the plaintiff’s release from detention necessarily involves an inquiry into the lawfulness of that detention, and that inquiry is whether the defendants’ exercise of the detention power under s 189 of the Migration Act is improper or unlawful. The plaintiff described the exercise of the detention power under s 189 as a migration decision. That may be so, but it is not a migration decision in the sense required for s 476A(1) to apply. The application for habeas corpus is not direct judicial review of a migration decision.
As Allsop CJ (with whom Besanko J agreed) explained in McHugh:
The phrase “in relation to” has a meaning derived from Bodruddaza v Minister for Immigration and Multicultural Affairs. Bodruddaza concerned s 486A (in Pt 8A), but the Full Court in Tang v Minister for Immigration and Citizenship applied it to s 476A. Tang has the support of Nettle J (sitting as a single Justice) in DBE17 v Commonwealth of Australia. From these authorities, and having regard to the terms of the Explanatory Memorandum for the Migration Litigation Reform Bill 2005 (Cth) discussed in Tang, 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…[22]
[22]McHugh (n 13) [15] (citations omitted).
The Chief Justice continued:
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). Relevantly here, the jurisdiction to exercise judicial review of the Minister’s decision under s 501CA can be seen to be with respect to a matter in which a constitutional writ or an injunction is sought against the Minister (for s 39B(1)). This is confirmed by the terms of s 476A(2). The jurisdiction can also be seen as a matter arising under a law of the Parliament (for s 39B(1A)(c)).[23]
[23]Ibid [18].
In McHugh, Mortimer J noted, obiter, that the Minister’s concession that while s 476A may prevent direct review of an exercise of power under s 189, it does not prevent a collateral challenge to the lawfulness of the appellant’s detention, as a step in the seeking of other relief, such as damages for false imprisonment. The present application is equally a collateral challenge to the lawfulness of the plaintiff’s detention.[24]
[24]Ibid [174], citing other decisions that I am about to note.
It follows that, as the defendants submitted, there is no jurisdictional restriction on the Federal Court and it could, incidental to that jurisdiction, issue a writ of habeas corpus and order the release of the plaintiff from detention in the proceeding.
The defendants cited other decisions, if further authority be needed, that supported this conclusion. In each of Fernando v Minister for Immigration and Citizenship (‘Fernando’) and Okwume v Commonwealth (‘Okwume’), jurisdiction was also challenged. In both proceedings, the applicants alleged false imprisonment arising from the Commonwealth’s improper exercise of the detention power under s 189 of the Migration Act.
In Fernando, Siopis J said about jurisdiction:
The first question is whether, in the absence of the restriction sought to be imposed on the original jurisdiction of the Court by s 476A, this Court would have original jurisdiction to hear and determine a claim for damages for false imprisonment arising from a detention effected by a person acting, or purporting to act, under the Act. In my view, whether a person is entitled to damages in respect of his or her imprisonment by a person acting or purporting to act, under the authority of the Act, is a matter arising under a Commonwealth statute, and any claim for damages brought by that person for false imprisonment would fall within the original jurisdiction of the Federal Court under s 39B(1A)(c) of the Judiciary Act 1903 (Cth).[25]
[25](2007) 165 FCR 471, 474 [18] (citations omitted).
In Okwume, Charlesworth J similarly concluded:
It follows from the principles stated in Bhardwaj, Tang, and Fernando that Mr Okwume may bring an action in this Court involving a collateral challenge to the validity of decisions made or purportedly made under the Act, notwithstanding the limitations imposed by s 476A of the Act on this Court’s original jurisdiction in relation to migration decisions. Where any part of Mr Okwume’s claim depends for its success on the invalidity of an administrative decision made or purportedly made under the Act, it must be demonstrated that the decision is affected by jurisdictional error in the sense described in Bhardwaj.[26]
[26]Okwume v Commonwealth of Australia [2016] FCA 1252
Her Honour’s reference to the High Court’s decision in Minister for Immigration and Multicultural Affairs v Bhardwaj is instructive to the characterisation of the plaintiff’s claim. Gaudron and Gummow JJ, in describing the characteristics of a decision involving jurisdiction error, said:
There is, in our view, no reason in principle why the general law should treat administrative decisions involving jurisdictional error as binding or having legal effect unless and until set aside. A decision that involves jurisdictional error is a decision that lacks legal foundation and is properly regarded, in law, as no decision at all. Further, there is a certain illogicality in the notion that, although a decision involves jurisdictional error, the law requires that, until the decision is set aside, the rights of the individual to whom the decision relates are or, perhaps, are deemed to be other than as recognised by the law that will be applied if and when the decision is challenged.[27]
[27](2002) 209 CLR 597, 614–15 [51] (citation omitted).
While I accept that a doubt about the jurisdiction of the Federal Court would be, as the defendants conceded, a relevant consideration to be taken into account when assessing the interests of justice, I am in no doubt that the Federal Court has jurisdiction in this proceeding — by force of s 39B(1A)(c) of the Judiciary Act — that is not excluded by the terms of s 476A(1) of the Migration Act, and that the Federal Court would so conclude with two consequences. First, the proceeding was capable of being instituted in the Federal Court, just as it was capable of being instituted in this court.[28] This court is invested with Federal jurisdiction pursuant to s 39(2) of the Judiciary Act. Consequently, ss 5(1)(b)(ii)(A) and (B) of the Transfer Provision are not relevant considerations. Secondly, the issue of a want of jurisdiction is not an issue affecting the interests of justice, as the plaintiff submitted.
[28]EZ (n 12).
Interests of justice
The Federal Court is undoubtedly a specialist court with respect to migration law. I can take judicial notice of the fact that it has constituted an Administrative & Constitutional Law & Human Rights National Practice Area, a substantial part of which includes judicial review applications, including under ss 476A and 476B of the Migration Act. That National Practice Area includes 48 judges, 14 of who are in the Victorian Registry. In contrast, this court is very rarely exposed to migration law matters, and none of the 14 judges who sit in the Common Law Division have, as judicial officers, any substantial current experience in migration law matters.
The fact that the Federal Court is the venue for practically all disputes concerning migration law in this country is no accident. Part 8 of the Migration Act is structured such that the federal courts — not state Supreme Courts — are responsible for proceedings in relation to direct judicial review of migration decisions. The Migration Act is effectively a law that is ‘peculiar to that jurisdiction’[29] that ought be construed and administered by the Federal Court. Recognition of the specialisations of each court and the convenience that flows from having judicial officers with the appropriate expertise hear and determine matters is relevant to the interests of justice criterion.[30]
[29]Dawson v Baker (n 4).
[30]Ibid 208; Ewins v BHP Billiton Ltd, [31] (n 10); BHP Billiton Ltd v Schultz, 427 (n 1).
In contrast, there are few reasons why the Supreme Court is a more appropriate jurisdiction than the Federal Court, particularly following the decision in McHugh. There is no jurisdictional issue precluding proceedings in that forum that might be obviated by a proceeding in this court. The Federal Court is equally as adept in appropriately addressing applications deserving of urgency, such as habeas corpus applications, as is this court. The Federal Court also operates a Victorian Registry, which extinguishes any inconvenience associated with locality. As the defendants submitted, the fact that the plaintiff has selected this forum is not a factor that carries any independent weight in the balancing exercise to be undertaken by the court. Neither is there any basis to contend that there is any forensic advantage to the plaintiff in terms of avoiding delay through his choice of forum. These matters are neutral.
The plaintiff submitted that, were the proceeding to be transferred, it would argue in the Federal Court, and on any appeal, that the Court lacked jurisdiction and that the proceeding must be returned to this court. I am not inclined to accept this statement of the plaintiff’s intentions — which is significantly at odds with the plaintiff’s repeated appeals to considerations of urgency and expediency — particularly in circumstances where the defendants agree that the Federal Court has both jurisdiction and power to grant the remedy sought by the plaintiff, were it persuaded that the plaintiff was entitled to that remedy.
Any delay on the part of an applicant for transfer, and the readiness of the proceeding for trial, are relevant factors in weighing the interests of justice. The plaintiff directed me to the authorities collected and discussed by Habersberger J in DPP v Chia in support of his submission that this proceeding is too close to trial to be transferred.[31] Those authorities are distinguished, and the plaintiff’s submission rejected, on the following bases:
[31]See Lamshed v Lamshed (1992) 35 FCR 111; ECC Lighting Ltd v McGurk (Supreme Court of New South Wales, Santow J, 15 June 1995); Westley v Australian Red Cross Society [1996] 2 VR 24.
(a) First, as stated, this proceeding was commenced on 18 December 2020, on the final day of the final sitting term for the year. It was heard before two different judges in the Practice Court and then before me on 5 February 2021, when the question of transfer was discussed. This was an expedited schedule that results in the proceeding being ready for trial in either court. There has not been any real delay in the question of transfer being raised, relative to a possible trial date. In any event, a trial date in either court is currently unknown and therefore hypothetical.
(b) Second, whilst affidavits and submissions have been filed, this Court has made no substantive orders, and there have been no interlocutory determinations in the proceeding thus far. This is distinct from several of the authorities referred to in DPP v Chia, such that it cannot be said here that ‘much water ha[s] passed under the bridge’.[32]
(c) Third, in each of the authorities referred to by the plaintiff, the transfer application was made by a party, and therefore any delay by that party in bringing the application was a relevant factor. Here, the question of transfer was raised by the court of its own motion. The defendants’ submissions are not undercut by allegations of delay.
[32]Lamshed v Lamshed, 115 (n 30).
I am not persuaded that there has been any undue delay or that the plaintiff has or is suffering relevant prejudice by reason of the course of this proceeding. No evidence was brought to my attention concerning the period of the plaintiff’s detention or the reasons for it, which may have varied over the course of his detention, save that I was informed that the plaintiff has been detained on the basis being challenged since February 2020.
This court will ensure that there is no delay in effecting the transfer. What then happens will be a matter for the plaintiff, who in contradistinction to the defendants seems intent on initiating further interlocutory applications that could delay the trial. A judge of the Federal Court may well be satisfied about jurisdiction and express reasons for that satisfaction when dealing with the substantive application. I cannot accept the proposition that delay through a number of further applications is to reasonably be anticipated. In my view, it will be clear to a judge that the matter can proceed to trial in the next available hearing date, notwithstanding what may need to be done in the interim period.
I am unable to form a view whether this court could make a judge available and that judge could deliver a decision any earlier than the Federal Court. That is a neutral factor in the assessment being undertaken. Bearing in mind the provisions of s 9 of the Civil Procedure Act 2010 (Vic), it is pertinent to observe that the resources provided to this court are not primarily directed to exercising jurisdiction under the Migration Act.
Section 11(3) of the Jurisdiction of Courts Act provides the default position that the Federal Court will deal with the proceeding as if all steps taken in this court had been taken there. The defendants have stated that they will not seek orders to the contrary. Given this, I am not satisfied that there is any significant procedural prejudice to the plaintiff arising from a transfer.
Finally, the plaintiff’s reliance on decisions in other state Supreme Courts to hear and determine habeas corpus applications does not greatly assist his case. Each case turns on its facts and, as stated in BHP v Schultz,[33] there is no burden of proof. The ultimate question is whether the Federal Court is a more appropriate forum for this dispute. I have determined that it is and, in so doing, I am not required to find error in the decisions of other state Supreme Courts. In any event, I note that the three authorities the plaintiff relied on are of limited assistance, as:
[33]BHP Billiton Ltd v Schultz, 437 (n 1).
(a) the decisions were each delivered some time ago and do not assist in the present day ‘nuts and bolts’ management decisions concerning transfer.[34] By way of one example only, each decision predated the passage of the Migration Litigation Reform Act 2005 (Cth), which made substantial changes to the issue of jurisdiction under the Migration Act, including the introduction of s 476A, which are relevant to the court’s consideration;
(b) the issue of whether the Transfer Provision was enlivened does not appear to have been raised in any of the proceedings; and
(c) contrary to the plaintiff’s submission, in Hassan v Australasian Correctional Services Pty Ltd, Lander J did not accept the court had jurisdiction, but decided ‘somewhat unusually’ to determine the application without resolving that issue.[35]
[34]Bankinvest AG v Seabrook (n 1).
[35]Hassan, [20] (n 19).
Conclusion and orders
It appears to me that in the interests of justice it is more appropriate that this proceeding be determined by the Federal Court. I will order that:
1. The proceeding is transferred to the Federal Court of Australia.
2. Costs reserved.
(1988) 14 NSWLR 711, 713–14 (cited with approval in BHP Billiton Ltd v Schultz (2004) 221 CLR 400,
420–1 [12]–[13]).
3
14
0