Characterisation of the relief sought
34 The primary judge held that the only substantive relief sought by the applicant is that set out in the eighth prayer for relief and is confined to a claim for damages for breach of an alleged duty of care to limit the duration of the applicant's detention to that required for the purpose of removal of the applicant to PNG as soon as reasonably practicable (Reasons at [44]).
35 The primary judge held that the balance of the relief sought by the applicant (aside from interest and costs) can, in substance, only be sought in aid of the tortious damages claim (Reasons at [45]). Inferentially, the primary judge found that none of the remaining prayers for relief were within the scope of the jurisdiction conferred on the FCC by s 476(1) of the Migration Act. Specifically, the primary judge held (Reasons at [45]):
(a) the injunctive relief sought by prayer 1 appears to be directed to preserving the subject matter of these proceedings, rather than based on any independent claim to final relief. In any event, the relief sought is inapt, for the applicant's (putative) ability to recover damages is unaffected by whether or not he is removed (and is, in this respect, a step removed from an equivalent order that might be sought in application for habeas corpus);
(b) the so-called injunctive relief sought by prayer 2 is, in substance, declaratory in nature: it is directed at a finding that, at a time when the applicant was detained, the respondents did not give effect to the obligations under ss 198AD(2) and/or 198(1);
(c) similarly, the declaratory relief sought by prayers 3 and 4 is directed at a finding that, at a time when the applicant was detained, the respondents did not give effect to the duty under s 198AD(2); and
(d) the declaratory relief sought by prayers 5 and 6 is expressly framed as tortious relief; namely, a putative duty to limit the duration of the applicant's detention (prayer 5) and an alleged breach of that duty (prayer 6).
36 The chronology of these proceedings is of some import. The original application was brought on 26 December 2020 and has been amended twice. The original application had identified the relevant migration decision as:
1. Holding the applicant in detention, being an 'act' or 'the doing of a thing' for the purposes of s.474(3)(g) of the Migration Act 1958;
2. Failure to remove, or to take any reasonable steps toward removal of the applicant to the relevant regional processing country.
37 The application sought a declaration that the detention of the applicant was not authorised by the Migration Act or any other power and was therefore unlawful and an order that the applicant be released from detention forthwith.
38 On 1 March 2021, the applicant was released from detention because he had been granted a bridging visa under s 195A of the Migration Act.
39 At a directions hearing on 29 March 2021, the applicant was directed to file and serve an amended application (Reasons at [3]), which was duly done on 30 April 2021.
40 By that application, the substantive relief sought by the applicant was framed as "[d]amages for false imprisonment, including aggravated and exemplary damages for the length and remoteness of the false imprisonment and the resulting mental anguish and anxiety suffered by the applicant". The applicant sought also:
1. A writ of prohibition preventing the respondents and their agents and officers from detaining the applicant upon the expiration of the applicant's bridging visa.
2. Declaration that from 23 October 2019 the applicant no longer needed to be in Australia for the temporary purpose for which he had been brought to Australia.
3. Declaration that the applicant was illegally detained within the period from the date of his arrival and detention in Australia on 25 June 2019 to his release from detention on 1 March 2021, being from 23 October 2019 to 28 February 2021.
41 The relief sought in prayer 3 was premised on an application for direct judicial review of the "migration decision" to detain the applicant between 23 October 2019 to 28 February 2021 on the ground that his detention was not authorised by law as he was detained otherwise than for the purpose of removal as soon as reasonably practicable under s 198(1A) of the Migration Act (Migration Act s 474(3)(e)). The relief sought in prayer 2, similarly, was premised on an application for direct judicial review of the "migration decision" not to undertake or carry into effect the removal duty in s 198AD, read with s 198AH by failing to take any steps to remove the applicant from 23 October 2019 to 28 February 2021 (Migration Act s 474(3)(g)), which detention was said to be "not authorised by law". A declaration equivalent to that sought by prayer 2 was granted by a Full Court of this Court in AOU21 v Minister for Home Affairs [2021] FCAFC 60.
42 Subsequent to the filing of the amended application, the High Court delivered its decision in Commonwealth of Australia v AJL20 [2021] HCA 21; 391 ALR 562 on 23 June 2021. That decision set aside the orders of a single judge of this Court, which had granted relief of the kind sought by the applicant. The High Court held that any failure of the respondent to comply with its statutory duties under s 198AD(2) or 198(1) does not render detention unlawful. The majority (Kiefel CJ, Gageler, Keane and Steward JJ) held, at [46]:
…There is likewise no constitutional need to read the words "until … he or she is removed from Australia" as referring "not to the fact of removal but to the time and effort necessary, as a matter of reasonable practicability, to effectuate the purpose of detention" such that the period of detention authorised under s 196 ceases to be authorised when removal should have occurred had officers of the Executive acted with all reasonable despatch.
43 Nevertheless, as observed by the majority at [53], the duty imposed by s 198(6) remained enforceable at all times during the period in which the relevant officers were failing to perform their duty to remove the applicant from Australia and they were amenable to mandamus to require them to perform their duty. The majority concluded, at [72]-[73]:
72 It is enough for the duty to detain imposed by s 189(1) to be sustained in accordance with s 196(1)(a) until completion of the performance of the duty to remove imposed by s 198 that the officer keeping or causing the person to be kept in immigration detention knows or reasonably suspects that the person is an unlawful non-citizen. Provided the requisite knowledge or suspicion continues to exist throughout the period of detention, an unauthorised or prohibited purpose on the part of the officer in prolonging the period of detention can affect neither the duty to detain nor the duty to remove nor the appropriate remedy for non- performance of the duty to remove.
Conclusion
73 The conclusion that officers of the Executive have not discharged their statutory duty to remove the respondent from Australia as soon as reasonably practicable affords a basis for orders requiring that they do their duty…
44 The applicant could therefore no longer maintain his claim in respect of the claimed illegality of detention said to arise from the migration decisions made under s 198AD(2) and 198(1), nor could the applicant claim damages for false imprisonment by reason of the Executive's failure to comply with its statutory duties under those provisions because that failure had not rendered the applicant's detention unlawful. The claimed public law relief of prohibition to prevent his further detention was, in any event, contrary to those authorities endorsing the validity of the Executive's authority and duty to detain an unlawful non-citizen pursuant to s 189(1): Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs [1992] HCA 64; 176 CLR 1; Al-Kateb v Godwin [2004] HCA 37; 219 CLR 562; Plaintiff S4/2014 v Minister for Immigration and Border Protection [2014] HCA 34; 253 CLR 219.
45 Nevertheless, and at the date of the amended application, that application was framed as one for direct judicial review of the "migration decisions" identified in prayers 2 and 3 such that the FCC had jurisdiction under s 476 to hear and determine those claims for relief, even if they were wrong in law and bound to fail.
46 The various iterations of the relief sought, as would be expected, reflect the applicant's changing circumstances. The first application sought a declaration that the applicant's detention was unlawful and an order in the nature of habeas corpus. The second sought, inter alia, declarations that the applicant no longer needed to be in Australia from 23 October 2019 and that he had been illegally detained in the past, both underpinning a claim that he should be removed back to PNG, and a claim for damages for false imprisonment.
47 The relief sought by the applicant in the third further amended application, being the one considered by the FCC in the judgment under appeal, was again reframed. The relief sought by prayer 2 of the third amended application was expressed as injunctive relief, and appeared to seek to restrain the respondents from relying on their previous conduct after the applicant had asked to be removed. The relief in prayers 3 and 4 is, in substance, the same relief as was sought in the amended application: a declaration that the applicant no longer needed to be in Australia for the temporary purpose for which he had been brought to Australia; and a declaration that that the respondents had breached s 198AD(2) by failing to remove the applicant from Australia as soon as reasonably practicable. The grounds for the relief sought, however, differ from those in the amended application in that they no longer relied on the tort of false imprisonment. In the third further amended application, and in reliance in part on the declaratory relief sought, the applicant purports to set up the claim for common law damages for negligence.
48 It should be noted at this juncture that there was no contest that the FCC has the power to grant declaratory relief (FCC Act s 16) nor that the power was circumscribed in this context because of the omission of declaratory relief from the specific public law remedies mentioned in s 75(v) of the Constitution (see McHugh at [3] per Allsop CJ, [232]-[234] per Mortimer J; Mokhlis v Minister for Home Affairs [2020] HCA 30; 382 ALR 1 at [13]-[14]). There was no complaint about standing. There was no complaint that the relief sought was colourable (Apache Northwest Pty Ltd v Newcrest Mining Ltd [2009] FCAFC 39; 182 FCR 124 at [71]).
49 In submissions in reply to the respondents' supplementary note, the applicant conceded that prayer 1 cannot be characterised as remedy flowing from direct judicial review of the two nominated decisions but maintained that the relief sought at prayers 2 - 4 is by way of direct judicial review in relation to the two nominated decisions.
50 The applicant's contentions in relation to prayer 2 cannot be sustained. Prayer 2 does not articulate any basis for judicial review of either decision (Fernando at [22]; McHugh at [15]). The injunction sought by prayer 2 is directed at restraining the respondents from maintaining a particular legal position. It does not seek to "directly" review the relevant migration decision, being the failure to take the applicant to a regional processing country as soon as reasonably practicable. Once it is appreciated that prayer 2 is not premised on an application for direct judicial review of a migration decision, the jurisdiction of the FCC in relation to those particular claims under s 476 falls away.
51 In Moorgate Tobacco Co Ltd v Philip Morris Ltd [1980] HCA 32; 145 CLR 457, the High Court dealt with the question of whether non-federal claims raised in Supreme Court proceedings (being claims in contract, trust or fiduciary obligations, and the tort of unfair competition) were distinct from or unrelated to the claims under federal jurisdiction (under the Trade Marks Act 1955 (Cth)) and so were severable from them. As the Supreme Court was invested with federal jurisdiction by s 39(2) of the Judiciary Act to determine matters arising under a law made by Parliament (Constitution s 76(ii)) there was no dispute that if in the proceedings there arose an issue as to the existence or non-existence of a right created by the Trade Marks Act, the Supreme Court was exercising federal jurisdiction as to the whole of the matter. The dispute was as to when a matter (that is, the whole of the matter) "arises" within the meaning of s 76(ii) so as to attract the exercise of federal jurisdiction. The Court held, at 476, per Stephen, Mason, Aickin, and Wilson JJ:
The cases establish that federal jurisdiction is attracted if the right or duty based in a federal statute is directly asserted by the plaintiff or defendant, but not if the federal question arises only in some incidental fashion. So too federal jurisdiction is attracted if the court finds it necessary to decide whether or not a right or duty based in federal law exists, even if that matter has not been pleaded by the parties. But the converse is not true. If a federal matter is raised on the pleadings federal jurisdiction is exercised, notwithstanding that the court finds it unnecessary to decide the federal question because the case can be disposed of on other grounds.
52 The relief sought by prayers 3 and 4 purport to seek relief in the nature of direct judicial review by directly challenging the impugned decisions. Prayer 3 seeks a declaration that the applicant no longer needed to be in Australia from a particular date, being a declaration as to one of the objective requirements specified in s 198AH(1) which ground the duty in s 198AD (AOU21 at [145] per Griffiths, Mortimer and Perry JJ). Similarly, prayer 4 is directed specifically to the "decision", being the failure to take the applicant to a regional processing country as soon as reasonably practicable as was the respondents' duty under s 198AD(2) of the Migration Act.
53 The respondents submitted that the relief sought was hopeless, inutile and hypothetical. That a claim made within jurisdiction is weak or even hopeless only means that it will be dismissed within jurisdiction.
54 The respondents' claims of inutility or hypotheticality sought to engage the notion expressed by Gaudron J in Truth About Motorways Pty Ltd v Macquarie Infrastructure Investment Management Ltd [2000] HCA 11; 200 CLR 591 at [49]:
Absent the availability of any relief related to the wrong which the plaintiff alleges, no immediate right, duty or liability is established by the Court's determination. Similarly, if there is no available remedy, there is no administration of the relevant law.
55 Her Honour referred to the long-held authority of In re Judiciary and Navigation Acts [1921] HCA 20; 29 CLR 257 at 265-266, in which the High Court held:
…there can be no matter within the meaning of the section [s 76] unless there is some immediate right, duty or liability to be established by the determination of the Court. If the matter exists, the Legislature may no doubt prescribe the means by which the determination of the Court is to be obtained, and for that purpose may, we think, adopt any existing method of legal procedure or invent a new one. But it cannot authorize this Court to make a declaration of the law divorced from any attempt to administer that law.
56 Similarly, having referred to In re Judiciary and Navigation Acts, Gleeson CJ and McHugh J said in Abebe, at [32]:
The existence of a "matter", therefore, cannot be separated from the existence of a remedy to enforce the substantive right, duty or liability. That does not mean that there can be no "matter" unless the existence of a right, duty or liability is established. It is sufficient that the moving party claims that he or she has a legal remedy in the court where the proceedings have been commenced to enforce the right, duty or liability in question. It does mean, however, that there must be a remedy enforceable in a court of justice, that it must be enforceable in the court in which the proceedings are commenced and that the person claiming the remedy must have sufficient interest in enforcing the right, duty or liability to make the controversy justiciable.
57 Prayers 3 and 4 are not inutile or hypothetical. They were claims for available relief in the nature of direct judicial review that had a purpose, prior to the delivery of AJL20 in the High Court, underpinning a claim for false imprisonment. The claims in that form and in that context were within jurisdiction. They are now made, but for a different purpose, as underpinning and informing a claim for damages for negligence. Whether or not the relief will be granted for that purpose and in that context will be a debate had within jurisdiction. The FCC had jurisdiction to hear those prayers for direct judicial review before the High Court delivered AJL20, it has jurisdiction afterwards.
58 Abebe stands for the proposition that a federal court may be conferred with jurisdiction to hear part of a whole matter. In s 476, the Parliament conferred limited (and by s 476A, exclusive of the Federal Court) original jurisdiction upon the FCC to hear applications by way of direct judicial review. Prayers 3 and 4 are of that character. They support and inform a wider claim which may or may not be available in the FCC by reason of ss 14 or 18 of the FCC Act. They would be available to be heard by a court conferred or invested with jurisdiction to hear any matter arising under a law of the Parliament (s 76(ii) of the Constitution).
59 None of the above makes the application for direct judicial review of a migration decision hypothetical in the FCC. There is the relevant part of the matter to be heard and determined there: a real claim for such direct judicial review. The splitting of the whole matter by Parliament may lead to unwieldiness of venue for different parts of the matter. Nevertheless the claims for direct judicial review are present in the FCC. The relief can be granted or dismissed on its merits, within jurisdiction. The results of such applications will take their place in the resolution of the wider controversy or matter in whichever court has jurisdiction to hear the balance of the whole matter.