The jurisdictional question - s 476A of the Migration Act
70 The jurisdictional question is whether the effect of s 476A of the Migration Act is that, other than in the proceeding transferred from the Circuit Court, the Court does not have original jurisdiction to entertain the applicant's claims for injunctive and declaratory relief in respect of the alleged failure of Commonwealth officers to discharge their duty under s 198 of the Migration Act.
71 But for s 476A of the Migration Act, the terms of which will be set out momentarily, there could be no doubt that the Court would have jurisdiction to entertain the claims for injunctive and declaratory relief. Subsection 39B(1) of the Judiciary Act 1903 (Cth) provides that, subject to certain exceptions which are not presently relevant, 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". This is obviously a matter in which an injunction is sought against an officer or officers of the Commonwealth. Further, s 39B(1A)(c) relevantly provides that the "original jurisdiction of the Federal Court of Australia also includes jurisdiction in any matter … 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". This is also obviously a matter which arises under the Migration Act.
72 The jurisdictional issue therefore boils down to the operation of s 476A(1) of the Migration Act, which provides as follows:
(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) both:
(i) the Federal Circuit and Family Court of Australia (Division 2) transfers a proceeding pending in that court in relation to the decision to the Federal Court under section 153 of the Federal Circuit and Family Court of Australia Act 2021; and
(ii) the Federal Court confirms the transfer under section 32AD of the Federal Court of Australia Act 1976; 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.
73 As can be seen, the effect of s 476A(1) of the Migration Act is that, despite any other law, including s 39B(1) of the Judiciary Act, the Federal Court has original jurisdiction in relation to a migration decision if, and only if, one or more of the circumstances in paragraphs (a) to (d) apply. A "migration decision" is defined in s 5(1) of the Migration Act as including, relevantly, a "privative clause decision". A "privative clause decision" is defined in ss 5(1) and 474(2) as meaning, relevantly, "a decision of an administrative character made, proposed to be made, or required to be made, as the case may be, under this Act or under a regulation or other instrument made under this Act …". Importantly, a reference in s 474(2) to a "decision" includes a reference to, relevantly, "doing or refusing to do any act or thing" and "a failure or refusal to make a decision": see s 474(3)(g) and (j) respectively.
74 The Commonwealth contended that the applicant's claims for injunctive and declaratory relief in respect of the duty to remove under s 198 of the Migration Act would involve judicial review of a migration decision. That is because the claims involve the allegation that officers failed or refused to do an act or thing - removing the applicant - which is a decision (as broadly defined in s 474(3)(g) and (j) of the Migration Act) of an administrative character made, or required to be made, under the Migration Act. In those circumstances, so it was submitted, the effect of s 476A(1) of the Migration Act is that the jurisdiction that the Court would otherwise have under s 39B(1) and (1A)(c) of the Judiciary Act is excluded or removed unless one of the paragraphs in s 476A(1) was engaged.
75 The applicant, for good reason, did not contend that paragraphs (b) to (d) in s 476A(1) of the Migration Act were engaged. The relevant decision is obviously not one made by the Administrative Appeals Tribunal on review under s 500 of the Migration Act, or one made by the Minister personally under ss 501, 501A, 501B, 501BA, 501C or 501CA of the Migration Act, or a decision in respect of which the Court has jurisdiction under ss 44(3) or 45(2) of the Administrative Appeals Tribunal Act 1975 (Cth).
76 As for s 476A(1)(a) of the Migration Act, as has already been indicated, the applicant commenced a proceeding in the Circuit Court on 19 August 2021 seeking injunctive and declaratory relief which mirrored the relief the subject of the amendment application. On 30 August 2021, the Circuit Court ordered the proceeding be transferred to this Court. While the applicant did not apply for an order pursuant to s 32AD of the Federal Court of Australia Act 1976 (Cth) (FCA Act), there is no reason why such an order should not be made. The parties also consented to orders that the transferred proceeding be heard together with this proceeding and that the evidence and submissions in this proceeding be evidence and submissions in the transferred proceeding.
77 It follows that, at least in the case of the proceeding which has been transferred from the Circuit Court, s 476A(1) does not operate to remove or exclude the Court's original jurisdiction in relation to the alleged failure of officers to discharge their statutory duty under s 198 of the Migration Act. There is no issue in respect of the Court's jurisdiction in the transferred proceeding. The applicant nevertheless pressed for the jurisdictional issue to be determined in respect of the proceeding commenced directly in this Court.
78 The applicant maintained that, despite the operation of s 476A of the Migration Act, the Court had jurisdiction to determine his claims for a mandatory injunction and declaratory relief in respect of the alleged failure by the Commonwealth to comply with the duty to remove him under s 198 of the Migration Act. He submitted that the reach of s 476A of the Migration Act is confined to applications for public law remedies in the nature of direct judicial review of migration decisions and does not extend to mere collateral attacks on migration decisions. In the applicant's submission, the proceeding commenced in this Court is a common law action for damages for false imprisonment and the remedies which he seeks are not in the nature of direct judicial review of migration decisions. He emphasised, in that context, that he does not apply for the issue of a writ of mandamus, but rather seeks a private law injunction in the Court's auxiliary equitable jurisdiction.
79 There is merit in at least some of the applicant's submissions concerning the scope of s 476A of the Migration Act.
80 It is now well established that the reach of s 476A of the Migration Act is confined to applications for public law remedies in the nature of direct judicial review of migration decisions and does not deprive the Court of original jurisdiction in relation to a claim in tort against the Commonwealth for false imprisonment, even if that claim involves a collateral challenge to a migration decision or decisions: DBE17 v The Commonwealth of Australia (2019) 266 CLR 156; [2019] HCA 47 at [14]-[15] (Nettle J); McHugh v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2020) 283 FCR 602; [2020] FCAFC 223 at [15] and [18] (Allsop CJ), [74] (Besanko J) and [174] (Mortimer J); see also Fernando v Minister for Immigration and Citizenship (2007) 165 FCR 471; [2007] FCA 1203 at [22] (Siopis J); Okwume v Commonwealth of Australia [2016] FCA 1252 at [28] (Charlesworth J). It is equally clear that the Court also has the power to grant a remedy in the nature of a writ of habeas corpus in the context of such an action because such relief does not involve direct judicial review of any migration decision: McHugh at [16], [20]-[23] (Allsop CJ), [74]-[75] (Besanko J) and [188]-[248] (Mortimer J).
81 In light of the authorities just referred to, there could be no doubt that s 476A of the Migration Act does not operate to exclude or remove the Court's jurisdiction to entertain the applicant's claim for damages for false imprisonment and for relief in the nature of habeas corpus. That is despite the fact that the applicant's claims relating to false imprisonment involve a collateral challenge to a migration decision.
82 As discussed at length earlier in these reasons, an essential element in the applicant's claim that his detention was and is unlawful is that officers of the Commonwealth have failed to comply with their duty under s 198 of the Migration Act to remove him from Australia as soon as reasonably practicable. The applicant's claim therefore involves a collateral challenge to a migration decision. That is because the alleged failure or refusal to do something that is required by the Migration Act is a decision (as broadly defined in s 474(3)(g) and (j) of the Migration Act) of an administrative character made, or required to be made, under the Migration Act: see M38/2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 131 FCR 146; [2003] FCAFC 131 at [88] (The Court); Mokhlis v Minister for Home Affairs (2020) 382 ALR; [2020] HCA 30 at [12] (Edelman J).
83 As the authorities referred to earlier establish, however, s 476A of the Migration Act does not operate to exclude or remove the Court's jurisdiction to entertain claims which involve only collateral challenges to migration decisions. It only operates to exclude claims involving the direct judicial review of migration decisions. The applicant's claim for damages and relief in the nature of habeas corpus involves at most a collateral challenge to the Commonwealth's compliance with the duty under s 198 of the Migration Act.
84 The more difficult question, however, is whether s 476A would operate to remove or exclude the Court's jurisdiction to entertain the applicant's claims for injunctive and declaratory relief arising from the allegation that officers had failed to comply with their statutory duty to remove the applicant as soon as reasonably practicable. That question hinges, to an extent, on whether those claims involve direct judicial review of a migration decision. It also hinges on whether s 476A can operate to preclude the Court from granting that relief despite the fact it is sought in the context of a broader claim - the claim for damages and habeas corpus - in respect of which the Court undoubtedly has jurisdiction.
85 The Commonwealth contended that the injunction and declaration sought by the applicant are public law remedies. It drew attention, in that regard, to the fact that injunctive relief is one of the remedies referred to in s 75(v) of the Constitution. It also submitted that the injunctive relief sought by the applicant was in substance identical to relief in the nature of a writ of mandamus, also referred to in s 75(v) of the Constitution. In those circumstances, so it was submitted, the injunctive and declaratory relief sought by the applicant involved direct judicial review of a migration decision and s 476A of the Migration Act therefore operated to remove or exclude the Court's jurisdiction to entertain that challenge.
86 The applicant submitted that the Commonwealth's contention in that regard confused and conflated the separate concepts of jurisdiction and power. He submitted that the Court had jurisdiction to entertain his claim because it was a private law claim for damages, even though his claim that he was wrongfully detained involved an allegation that Commonwealth officers had failed to comply with the duty under s 198 of the Migration Act. In the applicant's submission, because the Court had jurisdiction in relation to the matter generally, the question whether the Court could grant particular relief - an injunction to compel performance of the duty and a declaration that officers had failed to discharge the duty - was one of power, not jurisdiction. The applicant also took issue with the Commonwealth's characterisation of his claim as involving a claim for mandamus. He maintained that his claim was for an injunction in the Court's auxiliary equitable jurisdiction and that the Court had power to grant that relief pursuant to s 22 of the FCA Act.
87 The jurisdictional question arising from s 476A of the Migration Act is by no means easy to resolve in the circumstances of this case. It would, at least at first blush, appear that, had the applicant filed an originating application which simply sought relief in the nature of mandamus to compel the Commonwealth, through its officers, to perform the duty to remove him from Australia pursuant to s 198 of the Migration Act, the effect of s 476A would be to deprive the Court of jurisdiction to entertain that claim. A claim for relief in the nature of mandamus in respect of the duty under s 198 of the Migration Act would ordinarily involve direct judicial review of a migration decision. That was the conclusion reached by Katzmann J in Chamoun v Commonwealth of Australia [2021] FCA 740 at [51]. The applicant did not suggest that the finding in Chamoun was plainly wrong.
88 Does it matter that the injunctive relief sought by the applicant in respect of the duty under s 198 is made in the context of, or as part of, a broader "matter" in respect of which the Court plainly has jurisdiction, being the applicant's claim for damages for false imprisonment and relief in the nature of habeas corpus? And does it matter that the applicant has framed his relief in terms of a mandatory injunction, as opposed to relief in the nature of a writ of mandamus?
89 As for the first of those two questions, some of the reasoning in McHugh provides support for the applicant's contention that, because the Court has jurisdiction to entertain his claim that he has been unlawfully detained, it has the power not only to make an order in the nature of the writ of habeas corpus, but also the power to grant injunctive and declaratory relief. In McHugh, the appellant applied for an order in the nature of habeas corpus in the context of, or in conjunction with, an application for judicial review in respect of a decision by the Minister under s 501CA of the Migration Act not to revoke the cancelation of his visa. Section 476A did not remove the Court's jurisdiction to review the decision under s 501CA because it fell within s 476A(1)(c). The appellant also claimed that s 189 did not apply to him in any event because he was either a citizen or an Aboriginal Australian who was not an alien. The Minister conceded that the Court had jurisdiction to determine whether s 189 could apply to the appellant. The Minister nevertheless contended that s 476A operated to deprive the Court of jurisdiction to entertain the applicant's claim for relief in the nature of habeas corpus.
90 The Full Court held that the Court had the authority and power to issue a writ of habeas corpus, or make an order in the nature of habeas corpus, in the circumstances of the case. Both Allsop CJ (with whom Besanko J agreed in respect of the issue concerning jurisdiction) and Mortimer J reasoned that it was inappropriate to refer to the jurisdiction to entertain habeas corpus because "as a writ or remedy it is an incident of the exercise (if appropriate to be exercised) of the Court's jurisdiction otherwise conferred.": Allsop CJ at [21]; see also Mortimer J at [188]. Allsop CJ also relevantly reasoned that the "Court, with statutory (including any implied) jurisdiction has authority (from that jurisdiction) and power (from s 23) to issue the writ of habeas corpus, if it be an appropriate remedy (interlocutory in character) within or incidental to the resolution of the controversy (the matter) before the Court and in respect of which it has jurisdiction": Allsop CJ at [21]; see also Mortimer J at [223]-[247]. In those circumstances, it was held that a writ of habeas corpus, or an application for an order in the nature of habeas corpus, "can be sought as a remedy within, or as an incident of, the matter that includes the judicial review of the decision under s 501CA and the claim under s 39B that s 189 does not apply to [the applicant] …": Allsop CJ at [23]; Besanko J agreeing at [74]-[75]; see also Mortimer J at [239]-[241].
91 There are some clear parallels between McHugh and this case. In this case, the Minister conceded that the Court has jurisdiction, unaffected by s 476A of the Migration Act, to entertain the applicant's claim for damages for false imprisonment. He also conceded that the Court had authority and power to issue a writ of habeas corpus. The applicant's allegations relating to the failure of officers to remove him in accordance with their duties under s 198 plainly arose in the context of his claim for damages for false imprisonment. In those circumstances, there is much to be said in favour of the proposition that the Court has authority, arising from its jurisdiction in respect of the claim of false imprisonment, and power (pursuant to s 23 of the FCA Act) to grant relief (be it injunctive relief, or relief in the nature of mandamus), within or incidental to the resolution of the matter before the Court in respect of which it has jurisdiction: see also s 32 of the FCA Act.
92 It is true that the nature of the writ of habeas corpus, which, as Allsop CJ observed in McHugh (at [16]) "is of great historical and contemporary importance", may differ in some important respects from the injunctive and declaratory relief sought by the applicant in respect of the duty under s 198 of the Migration Act. While habeas corpus "does not involve direct judicial review of any decision" (Allsop CJ in McHugh at [16]), it is somewhat difficult to see how the same could necessarily be said in respect of the injunctive and declaratory relief. That said, it is equally difficult to see why the particular nature of the relief sought within, or as an incident of, a matter in respect of which the Court has jurisdiction necessarily bears on the question of jurisdiction.
93 The Commonwealth submitted that, even though the Court had jurisdiction to entertain the applicant's broader claims in respect of false imprisonment, s 476A can nevertheless operate to remove the Court's jurisdiction in respect of that part of the matter which involves an application for direct judicial review of a migration decision. In the present context, that would mean that s 476A would operate to remove or exclude the Court's jurisdiction in respect of the applicant's claims for relief relating to the duty to remove under s 198 of the Migration Act, but leave undisturbed the Court's jurisdiction to entertain the applicant's claims in respect of false imprisonment. The Commonwealth also characterised the applicant's claims for injunctive and declaratory relief in respect of the duty to remove as an "add-on" which the applicant did not "need" in order to obtain the relief sought by him in respect of his detention.
94 There are at least three difficulties with those submissions.
95 First, the submission in relation to the operation of s 476A appears to run counter to the reasoning in McHugh. In McHugh, the Full Court had jurisdiction to review the Minister's decision under s 501CA by reason of s 476A(1)(c) of the Migration Act. The Full Court held that the Court had authority and power to issue a writ of habeas corpus, as being within or as an incident of that jurisdiction. If the submission made by the Minister in this case concerning the operation of s 476A is correct, it would have operated in McHugh to remove the Court's authority and power to entertain the application in respect of habeas corpus because it could (on the Commonwealth's argument) also have been characterised as an "add-on". It is apparent that the Full Court did not consider that s 476A operated in this way. The Commonwealth did not grapple with that aspect of the reasoning in McHugh.
96 Second, it is not entirely correct to characterise the applicant's claims based on the duty to remove under s 198 of the Migration Act as a mere "add-on", or as being unnecessary. It is true that the applicant's specific claims for injunctive and declaratory relief concerning the alleged failure of officers to perform their duty were sought to be added at a later point in time, no doubt as a result of the High Court's decision in AJL20 (HC). That does not mean that those claims can accurately be characterised as being unnecessary or a mere "add-on". The claims for injunctive and declaratory relief are based on the same core allegation that formed the basis of the applicant's claim for damages for false imprisonment, namely, that officers had failed to discharge their duty under s 198 of the Migration Act to remove the applicant as soon as reasonably practicable. In seeking to add the claims for injunctive and declaratory relief, the applicant was merely seeking to add additional or alternative claims for relief arising from the same core allegation. The fact that the applicant might have been able to secure his original claim for damages without resort to the additional or alternative claims for relief is entirely beside the point.
97 Third, as the applicant submitted, the Commonwealth's submissions tended to conflate jurisdiction and power. It was common ground that the Court had jurisdiction to entertain the applicant's claim relating to false imprisonment, including as it did the allegation that officers had failed to perform the duty under s 198 of the Migration Act. While the specific claims for injunctive and declaratory relief were sought to be added at a later stage, and may not directly relate to the claims for damages and relief in the nature of habeas corpus, it is difficult to see why that necessarily bears on the question of jurisdiction.
98 The final issue to address is whether it matters that the applicant has framed his relief in terms of a mandatory injunction, as opposed to relief in the nature of mandamus. It would appear likely that the applicant framed the relief in that way with a view to circumventing the issues that might otherwise arise concerning the operation of s 476A of the Migration Act.
99 As has already been discussed at length, the critical question in determining whether s 476A operates to exclude the Court's jurisdiction in relation to his claims concerning the duty in s 198 is whether they constitute an application for public law remedies in the nature of direct judicial review of the conduct said to constitute a migration decision. Like many of the submissions by the parties in this matter, the submissions by the applicant and the Commonwealth in respect of the nature of the relief sought by the applicant were poles apart. For its part, the Commonwealth characterised the injunctive and declaratory relief sought by the applicant as "public law remedies in all but name" and submitted that the mandatory injunction sought by the applicant was "indistinguishable from mandamus". The Commonwealth also relied on the fact that both mandamus and injunctive relief against Commonwealth officers are referred to in s 75(v) of the Constitution. The applicant, on the other hand, characterised the relief sought by him as an equitable injunction in aid of the enforcement of private law rights. It was therefore not a public law remedy.
100 The proper characterisation of the relief lies somewhere in between those two polar extremes.
101 It may be accepted that the exercise of the power to issue an injunction under s 75(v) of the Constitution is informed by the principles historically applied in respect of that remedy by courts administering equity: see the discussion in Smethurst v Commissioner of Police (Cth) (2020) 376 ALR 575; [2020] HCA 14 at [91]-[98] (Kiefel CJ, Bell and Keane JJ), [110]-[113] (Gageler J); [143]-[146] (Nettle J), [170]-[183] (Gordon J) and [226]-[239] (Edelman J). It does not follow that a mandatory injunction issued against an officer of the Commonwealth is incapable of being characterised as a public law remedy. While an injunction issued in that context may be "forged in the realm of private law", it may nevertheless be available in the "field of public law": cf Smethurst at [144] (Nettle J). An injunction is one of the "means of assuring all [sic] that officers obey the law and neither exceed nor neglect any jurisdiction …": Smethurst at [97] (Kiefel CJ, Bell and Keane JJ), citing Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476; [2003] HCA 2 at [104] (Gaudron, McHugh, Gummow, Kirby and Hayne JJ).
102 The applicant's contention that the mandatory injunction sought by him to compel officers of the Commonwealth to fulfil their duty under s 198 is "in aid of the enforcement of private law rights" is also somewhat doubtful. The injunction sought by the applicant plainly seeks to compel Commonwealth officers to discharge a public duty, rather than protect the applicant's private rights. It is, in that context, more a public law remedy than a remedy which seeks to protect or enforce the applicant's private rights.
103 The fact that the mandatory injunction sought by the applicant may be capable of being characterised as a public law remedy does not, however, mean that it necessarily involves direct judicial review of a migration decision such as to engage s 476A of the Migration Act. Indeed, despite the broad definition of "decision" in s 474(3) of the Migration Act, it is somewhat difficult to see why an injunction compelling officers to perform a duty which they have failed or refused to perform necessarily involves "reviewing" the officers' failure or refusal to perform the duty. As Allsop CJ observed in McHugh (at [16]), "the notion of judicial review is to be more narrowly conceived" given the statutory context of s 476A, which concerns the "reordering of original and appellate jurisdiction between related courts".
104 It should also be noted in this context that an injunction may issue to restrain a Commonwealth officer from exceeding or abusing power in circumstances where there has been no jurisdictional error: see Smethurst at [234] (Edelman J). It is, in those circumstances, difficult to see why the same would not apply to the issue of a mandatory injunction to compel the performance of a public duty. That tends to reinforce the conclusion that a mandatory injunction of the type sought by the applicant does not necessarily involve direct judicial review of a migration decision.
105 It is also not entirely correct for the Commonwealth to contend that the injunction sought by the applicant was "mandamus in all but name". If the injunction sought by the applicant was to be granted, the effect may, broadly speaking, be similar to the effect of an order in the nature of a writ of mandamus, in the sense that the officers would be compelled to perform their statutory duty. To that extent, it could be said that there is an overlap between the two forms of relief. That is not to say, however, that the injunctive relief sought by the applicant is the same "in all but name" as the issue of a writ of mandamus. The two forms of relief are conceptually different and the principles that apply to the grant of an injunction in this context differ from the principles that apply in respect of mandamus. As already noted, an injunction may be granted in respect of a matter that does not involve jurisdictional error.
106 In all the circumstances, the better view would appear to be that, while the mandatory injunction sought by the applicant could accurately be characterised as a public law remedy, it nevertheless does not, at least in the particular circumstances of this case, involve direct judicial review of the relevant migration decision.
107 The more significant point, however, is that, as was the case in McHugh in respect of the relief of habeas corpus, the relevant question in this matter is not whether the Court has jurisdiction to issue an injunction. The question is whether the Court has power to issue an injunction as a means of resolving a matter in respect of which it has jurisdiction.
108 While the jurisdictional issue raised by the potential operation of s 476A in the circumstances of this matter is by no means straightforward, and its resolution is by no means free from doubt, the better view would appear to be that, in the somewhat unique circumstances of this case, the Court has jurisdiction to entertain the applicant's claims for relief based on the allegation that officers have failed to perform or carry out their duty to remove him under s 198 of the Migration Act. The Court has jurisdiction to entertain those claims within, or as an incident of, the applicant's broader claim for damages for false imprisonment and relief in the nature of habeas corpus. There is no dispute that the Court has jurisdiction to entertain those claims. The applicant is able to seek, and the Court has power to issue, a mandatory injunction and declaration relating to the failure of the officers to carry out their duty as an incident of that matter. Section 476A does not operate to exclude or remove the Court's jurisdiction in that regard.
109 It should finally be reiterated that this lengthy excursion concerning jurisdiction is in any event essentially academic. That is because the Circuit Court proceeding, which includes the applicant's claims concerning the alleged failure of the Commonwealth to perform or carry out the duty to remove him under s 198 of the Migration Act, has been transferred to this Court. An order has or will be made confirming that transfer pursuant to s 32AD of the FCA Act. Subsection 476(1)(a) is accordingly engaged and the Court has jurisdiction in relation to those claims pursuant to that provision.
110 The jurisdictional question was the only substantive point that the Commonwealth raised in opposition to the applicant's amendment application. The Commonwealth did not suggest that it was in any way prejudiced by the amendment.
111 Leave to amend will accordingly be granted to the applicant to file an amended originating application in the form annexed to the affidavit of Ms Sarah Fisher affirmed on 21 July 2021.