For the reasons explained above, in our view the conferral of jurisdiction on the FCFCOA by s 476(1) of the Migration Act includes jurisdiction to determine the whole of the "matter" in which a writ of mandamus or prohibition or an injunction is sought against an officer of the Commonwealth in respect of a migration decision. GKX18 having invoked the jurisdiction of the FCFCOA by filing an application for an injunction and for habeas corpus in relation to his continuing detention, the FCFCOA had jurisdiction to determine all aspects of that "matter". In the circumstances of this case, the question of whether GKX18 is entitled to damages in tort for false imprisonment is part of the same "matter" as the question of whether habeas corpus should issue.
Accordingly, the primary judge was correct to hold that the FCFCOA has jurisdiction to determine GKX18's claim for damages. The appeal of the Minister and the Secretary should be dismissed with costs.
[2]
I certify that the preceding one hundred and forty-one (141) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justices Markovic, Horan and McDonald.
Parties
Applicant/Plaintiff:
Minister for Immigration and Citizenship
Respondent/Defendant:
GKX18
Legislation Cited (6)
Circuit Court of Australia Act 1999
Court Rules 2011
Decisions (Judicial Review) Act 1977
Circuit and Family Court of Australia Act 2021
Court of Australia Act 1976
Litigation Reform Act 2005
Cases Cited (49)
Abebe v The Commonwealth (1999) 197 CLR 510; [1997] HCA 14
GKX18 is a citizen of Iraq. In 2016, he married an Australian citizen in Jordan, and his daughter was born in New South Wales in November 2016. In January 2017, GKX18 arrived in Australia on a Partner (Provisional) Subclass 309 visa.
In May 2017, GKX18 was charged with six criminal offences involving alleged family violence, and his wife subsequently withdrew her sponsorship of GKX18's partner visa. In July 2017, GKX18 withdrew his application for a partner visa and applied for a protection visa. He was granted a Bridging Visa A and then, in August 2017, was granted a Bridging Visa C.
In October 2017, GKX18 was convicted of three of the criminal offences with which he had been charged and to which he had pleaded guilty. The other three charges were dismissed. He was sentenced to 12 months' imprisonment, with a non-parole period of nine months.
On 13 October 2017, a determination was made within the Department of Immigration and Border Protection to the effect that GKX18's application for a protection visa was invalid. Later that month, a delegate of the Minister made a decision to cancel his Bridging Visa C. In April 2018, GKX18 made a second application for a protection visa. Upon his release from prison in mid-2018, GKX18 was taken into immigration detention.
On 4 September 2018, a delegate of the Minister refused GKX18's second application for a protection visa. On 13 November 2018, the Administrative Appeals Tribunal (Tribunal) affirmed the delegate's decision. GKX18 then applied to the Federal Circuit Court of Australia (FCCA) for judicial review of the Tribunal's decision. That application was dismissed by the FCCA on 26 July 2019: GKX18 v Minister for Home Affairs[2019] FCCA 2028. On 5 March 2020, this Court dismissed an appeal by GKX18 against the decision of the FCCA: GKX18 v Minister for Home Affairs[2020] FCA 263.
Thereafter, GKX18 was precluded from making a further application for a protection visa by s 48A of the Migration Act. Between March 2020 and January 2022, GKX18 made six requests, pursuant to ss 195A, and 417 of the , for the Minister to exercise his personal discretion to grant GKX18 a protection visa. None of GKX18's requests was referred to the Minister or resulted in the grant of a protection visa to GKX18.
This explanation was further elaborated on by Gummow and Hayne JJ in Re Wakim; Ex parte McNally(1999) 198 CLR 511; [1999] HCA 27 in the following terms (at 585-6 [140]):
On 18 April 2022, the Tribunal affirmed the decision of the Minister's delegate to cancel GKX18's Bridging Visa C. In the course of making that decision, the Tribunal recorded a finding that Australia owed international non-refoulement obligations in respect of GKX18.
In March 2024, GKX18 requested that the Minister lift the statutory bar imposed by s 48A of the Migration Act so as to permit GKX18 to make a further application for a protection visa.
On 7 August 2024, the solicitor for GKX18 wrote to the Minister, requesting that GKX18 be released from immigration detention forthwith. GKX18's solicitor submitted that there was no real prospect of GKX18's removal from Australia becoming practicable in the reasonably foreseeable future, so that the limitation on detention identified by the High Court in NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs (2023) 280 CLR 137; [2023] HCA 37 applied to him. GKX18's solicitor informed the Minister that GKX18 would commence proceedings for a writ of habeas corpus if he was not released by 5.00pm on 14 August 2024. On 16 August 2024, in response to that correspondence, the Minister asserted that it was GKX18's voluntary decision not to cooperate that was preventing his removal and was the reason for his continuing detention.
On 19 August 2024, in further correspondence sent to the Minister, the solicitor for GKX18 reiterated that there was no real prospect of his being removed from Australia in the reasonably foreseeable future because of the government's "long-standing policy of not returning people to a country in breach of its non-refoulement obligations." The solicitor for GKX18 further asserted that the Minister had "not provided any evidence that this policy will change".
On 11 September 2024, GKX18 commenced proceedings in the FCFCOA, in which he sought a writ of (or in the nature of) habeas corpus, a mandatory injunction restraining the Minister and the Secretary from detaining him under s 189(1) of the Migration Act, and costs. On 8 October 2024, GKX18 filed an amended application in which he also sought damages for unlawful imprisonment.
The application for habeas corpus was listed for hearing in the FCFCOA before the primary judge, commencing on 11 October 2024. Before the commencement of the second day of the hearing on 16 October 2024, the Minister informed the primary judge that GKX18 had been granted a Bridging Visa E for four months pursuant to s 195A of the Migration Act, and that the habeas corpus application need not be determined at that time. The Minister asked the primary judge to dismiss the habeas corpus application. Her Honour declined to do so "because the Bridging Visa E was only valid for four months, and it was unclear whether the habeas corpus application might need to be revived at some point", and because "it was unclear whether the dismissal of the habeas corpus application might impact on the applicant's claim for damages": primary judgment at 111 [19].
Leave was granted to GKX18 to file an amended application in the FCFCOA. On 15 January 2025, GKX18 served a proposed further amended application seeking the following relief:
A writ of habeas corpus or a writ in the nature of habeas corpus.
A mandatory injunction restraining the [appellants] from detaining [GKX18] under section 189(1) of the Migration Act 1958 (Cth).
A declaration that the [appellants'] detention of [GKX18] from 22 April 2022, or at least from 8 November 2023, to 16 October 2024 was unlawful.
Damages for unlawful imprisonment from 22 April 2022, or at least from 8 November 2023, to 16 October 2024, with damages from 8 November 2023 to 16 October being aggravated.
An order to quash, or an order to otherwise remove "condition 8510 - The holder must obtain a valid passport" on [GKX18's] bridging visa E granted on 16 October 2024.
Costs.
The Minister and the Secretary contended that the FCFCOA did not have jurisdiction to hear and determine GKX18's claim for damages for false imprisonment. The primary judge dealt with the application on the papers after the parties filed written submissions in support of their respective positions. On 6 March 2025, the primary judge made a declaration that the FCFCOA had jurisdiction to deal with GKX18's claim for damages for unlawful imprisonment, made orders in relation to costs and for the further conduct of GKX18's claim for damages, and delivered reasons for judgment. On 20 March 2025, the Minister and the Secretary filed their application for leave to appeal to this Court from the orders made on 6 March 2025.