AFF20 v Minister for Home Affairs

1. The interlocutory application filed on 6 April 2020 be dismissed summarily.
2. The applicant pay the respondent's costs of the interlocutory application, as agreed or taxed. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

GRIFFITHS J: 1 This matter came before the Court today, the Minister having raised an issue as to whether an interlocutory application filed recently by the applicant should summarily be dismissed. The resolution of the issue turns upon the proper construction of ss 196 and 476A of the Migration Act 1958 (Cth). The Court has had the advantage of reviewing, in writing, the parties' respective positions on whether the Court has the power to grant the relief which is sought by the applicant in his interlocutory application. 2 The nature of that relief is an order restraining the Minister from continuing to detain the applicant in immigration detention pending the hearing of his substantive judicial review application, which is listed to be heard on 10 June before me, as well as seeking a mandatory injunction for immediate release of the applicant from immigration detention. 3 For the following reasons I consider the interlocutory application should be summarily dismissed. 4 The proceedings commenced back on 15 January 2020 when the applicant sought judicial review of the Minister's decision to cancel his Class AH, Subclass 101 (Child) visa under s 501(3) of the Migration Act. That is the power to cancel a visa where the Minister considers that it is in the national interest to do so. 5 The applicant is currently detained at Silverwater Jail. The interlocutory application to which I have referred was filed on 6 April 2020. It was accompanied by an affidavit sworn by the applicant in support of the interlocutory relief. As I pointed out in the course of oral argument, that affidavit should be withdrawn and replaced with an affidavit that uses the applicant's name as a pseudonym and not his actual name. Given the nature of the interlocutory relief that was sought, the matter was listed today, only a week or so after the interlocutory application was filed. 6 The Minister's position as to summary dismissal is outlined in two letters which the Australian Government Solicitor sent to the applicant. They are dated 8 and 9 April 2020. Those letters raise the application of the provisions in s 196, subsections (3) through to (6), of the Migration Act. They also draw attention to a series of decisions: one by the Full Court, and several first instance decisions in which the Court has held that it does not have power to grant the sort of relief which the applicant seeks in this instance. 7 Those cases include the Full Court's decision in Ongel v Minister of Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 239 (per Spencer, Hely and Bennett JJ) and decisions such as that of Gilmour J in Applicant in WAD 230/2014 v Minister for Immigration & Border Protection [2014] FCA 1351 and McKerracher J's decision in Durani v Minister for Immigration and Border Protection [2013] FCA 1264; 223 FCR 391. 8 The Full Court decision in Ongel was decided at a time prior to the insertion in 2005 of s 476A upon which the applicant places heavy reliance. Putting that matter to one side, in customarily clear and unambiguous terms, Hely J, who gave the primary reasons for judgment in Ongel, said at [2] that: However, the Act was amended in September 2003 by the addition of subs (4) to s 196 which precludes the making of an interlocutory order for the release of a person in detention such as the appellant. It seems to me that the consequence of s 196(4) is that this Court has no power to grant to the appellant the relief which he seeks. 9 His Honour's views were adopted by Spender and Bennett JJ. 10 There is also, if I may respectfully say so, a very helpful discussion of the relevant principles in McKerracher J's judgment in Durani. It contains a discussion of the relevant approach to be taken by the Court to the summary dismissal of part of a proceeding, as is sought by the Minister here. His Honour's reasons for judgment also address the matter that is squarely raised here, namely the effect of s 196(4) of the Migration Act. 11 It is appropriate to set out all of s 196 of the Migration Act. 196 Duration of detention (1) An unlawful non-citizen detained under section 189 must be kept in immigration detention until: (a) he or she is removed from Australia under section 198 or 199; or (aa) an officer begins to deal with the non-citizen under subsection 198AD(3); or (b) he or she is deported under section 200; or (c) he or she is granted a visa. (2) To avoid doubt, subsection (1) does not prevent the release from immigration detention of a citizen or a lawful non-citizen. (3) To avoid doubt, subsection (1) prevents the release, even by a court, of an unlawful non-citizen from detention (otherwise than as referred to in paragraph (1)(a), (aa) or (b)) unless the non-citizen has been granted a visa. (4) Subject to paragraphs (1)(a), (b) and (c), if the person is detained as a result of the cancellation of his or her visa under section 501, 501A, 501B, 501BA or 501F, the detention is to continue unless a court finally determines that the detention is unlawful, or that the person detained is not an unlawful non-citizen. (4A) Subject to paragraphs (1)(a), (b) and (c), if the person is detained pending his or her deportation under section 200, the detention is to continue unless a court finally determines that the detention is unlawful. (5) To avoid doubt, subsection (4) or (4A) applies: (a) whether or not there is a real likelihood of the person detained being removed from Australia under section 198 or 199, or deported under section 200, in the reasonably foreseeable future; and (b) whether or not a visa decision relating to the person detained is, or may be, unlawful. (5A) Subsections (4) and (4A) do not affect by implication the continuation of the detention of a person to whom those subsections do not apply. (6) This section has effect despite any other law. (7) In this section: visa decision means a decision relating to a visa (including a decision not to grant the visa, to cancel the visa or not to reinstate the visa). 12 Particular emphasis should be placed on s 196(4) where it is provided that, subject to what is contained in subsections (1)(a), (b) and (c) of s 196, if a person is detained as a result of the cancellation of his or her visa under s 501 - and that is the case here with this applicant - then the detention is to continue unless a court finally determines that the detention is unlawful or that the person detained is not an unlawful non-citizen. 13 As Mr Herzfeld, who appeared for the Minister, also pointed out, subsection 196(6) is another important provision. It provides that s 196 has effect despite any other law. 14 It is in that context then that one turns to s 476A, which, as I have already observed, was inserted in the Migration Act in 2005. Mr Chatterjee, who appeared for the applicant, placed particular reliance upon this provision, especially subsection (2). Section 476A of the Migration Act provides as follows: 476A Limited jurisdiction of the Federal Court (1) Despite any other law, including section 39B of the Judiciary Act 1903 and section 8 of the Administrative Decisions (Judicial Review) Act 1977, the Federal Court has original jurisdiction in relation to a migration decision if, and only if: (a) the Federal Circuit Court transfers a proceeding pending in that court in relation to the decision to the Federal Court under section 39 of the Federal Circuit Court of Australia Act 1999; or (b) the decision is a privative clause decision, or a purported privative clause decision, of the Administrative Appeals Tribunal on review under section 500; or (c) the decision is a privative clause decision, or purported privative clause decision, made personally by the Minister under section 501, 501A, 501B, 501BA, 501C or 501CA; or (d) the Federal Court has jurisdiction in relation to the decision under subsection 44(3) or 45(2) of the Administrative Appeals Tribunal Act 1975. Note: An appeal in relation to any of the following migration decisions cannot be made to the Federal Court under section 44 of the Administrative Appeals Tribunal Act 1975: (a) a privative clause decision; (b) a purported privative clause decision; (c) an AAT Act migration decision. In addition, reference of a question of law arising in relation to a review of any of the proceedings mentioned in paragraph (a), (b) or (c) cannot be made by the Tribunal to the Federal Court under section 45 of the Administrative Appeals Tribunal Act 1975. The only migration decisions in relation to which an appeal under section 44 of that Act, or a referral under section 45 of that Act, can be made to the Federal Court are non-privative clause decisions. (2) Where the Federal Court has jurisdiction in relation to a migration decision under paragraph (1)(a), (b) or (c), that jurisdiction is the same as the jurisdiction of the High Court under paragraph 75(v) of the Constitution. (3) Despite section 24 of the Federal Court of Australia Act 1976, an appeal may not be brought to the Federal Court from: (a) a judgment of the Federal Circuit Court that makes an order or refuses to make an order under subsection 477(2); or (b) a judgment of the Federal Court that makes an order or refuses to make an order under subsection 477A(2). (4) Despite section 33 of the Federal Court of Australia Act 1976, an appeal may not be brought to the High Court from a judgment of the Federal Court that makes an order or refuses to make an order under subsection 477A(2). (5) In this section: judgment has the same meaning as in the Federal Court of Australia Act 1976. 15 Mr Chatterjee also drew attention to a decision of a single Justice of the High Court in Plaintiff M168/10 v The Commonwealth [2011] HCA 25. This decision is an ex tempore decision of Crennan J. Relief was sought there in the course of proceedings commenced in the High Court's original jurisdiction, which is similar to the relief which the applicant now seeks in the present proceeding. At [14] of her Honour's reasons for judgment, her Honour said (footnote omitted): There is no dispute between the parties as to the Court's power to make an interlocutory order effecting the release of a person from detention where there is a serious question to be tried about whether the detention of the person is lawful. In the context of these applications brought pursuant to s 75 of the Constitution, this Court has an incidental power to do all that is necessary to effectuate the grant of jurisdiction conferred by s 75. 16 The thrust of Mr Chatterjee's argument is that s 476A was not considered in any of the decisions of the Full Court and the Federal Court which I have referred to above and he urges the Court to adopt the view expressed by Crennan J, having regard to the terms of s 476A(2). As I pointed out in oral argument, one of the fundamental difficulties with the applicant's contention is that it confuses the difference between the Court having jurisdiction in a matter and the powers that the Court has in the exercise of that jurisdiction. Section 476A(2) confers jurisdiction on the Court. It does not say anything in its terms about the powers that the Court may exercise in exercising the jurisdiction which is undoubtedly conferred upon it. That distinction, in my respectful view, is important. 17 The Minister submitted, correctly in my view, that the applicant's argument here is to the effect that s 196 would preclude the Court granting the relief which the applicant seeks, but for the operation of s 476A. In other words, the applicant's position seems to be that s 476A has impliedly repealed what otherwise would be the effect of s 196(4) as that provision has been construed and applied in the authorities of this Court to which I have already made reference. The applicant's approach fails to give proper effect to the express terms of s 196(6) where it is provided that "[t]his section has effect despite any other law". 18 It is incontrovertible that, consistently with notions of parliamentary sovereignty, the Commonwealth Parliament could, if it so wished, amend or repeal s 196(4), but the insertion of s 476A cannot properly be regarded as achieving either of those outcomes. The Migration Act needs to be read as a whole. When it is read as a whole, there is a harmonious operation between the relevant provisions of s 196 and the relevant provisions of s 476A. As I have already indicated, se 196 deals in its terms with the exercise of powers by a court. Section 476A deals with a different but related topic, namely the conferral of jurisdiction. The Court has the jurisdiction in relation to a migration decision as defined in Div 2 of Pt 8 of the Migration Act. That jurisdiction is, in relation to a "migration decision" as defined, the same as the High Court's jurisdiction under s 75(v) of the Constitution. 19 That is not to say, however, that s 476A(2) means that all the powers that are available to the High Court in the exercise of its original jurisdiction are also available to this Court. The Court must give effect to the clear terms of ss 196(4) and 196(6), both of which relate to the exercise of powers when the Court exercises its migration jurisdiction. Whatever the position might be as far as the High Court is concerned, and the effect of s 476A on that jurisdiction, is a matter which I need not determine today, the focus being rather on the powers of this Court in exercising its migration jurisdiction. 20 For all those reasons, I consider that the applicant's interlocutory application should summarily be dismissed, with costs. I certify that the preceding twenty (20) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Griffiths.