[2023] HCA 26
HIGH COURT OF AUSTRALIA
Kiefel CJ, Gordon, Edelman, Steward and Gleeson JJ
M84/2022 & M85/2022
C L Lenehan SC with M L L Albert and J R Murphy for the appellant (instructed by Human Rights Law Centre)
S P Donaghue KC, Solicitor-General of the Commonwealth, and P M Knowles SC with N A Wootton for the respondents (instructed by Australian Government Solicitor)
Constitution, Ch III.
Federal Court of Australia Act 1976 (Cth), s 24.
Migration Act 1958 (Cth), ss 198, 198AD, 198AE.
Constitutional Law (Cth) — Judicial power of the Commonwealth — Jurisdiction — Appeals — Meaning of “matter” — Where appellant commenced proceedings in Federal Court of Australia seeking mandamus to require Secretary of Department of Home Affairs to remove him from Australia to a regional processing country under s 198AD(2) of Migration Act 1958 (Cth) — Where Federal Court made orders declaring s 198AD(2) of Act applied to appellant, requiring Secretary to perform duty under s 198AD(2) as soon as reasonably practicable, and requiring appellant be detained in immigration detention at a residential address pending removal to a regional processing country — Where Minister for Home Affairs subsequently exercised power under s 198AE(1) of Act to determine duty under s 198AD(2) did not apply to appellant — Where respondents sought to appeal primary judge's orders to Full Court of the Federal Court of Australia — Where at time of appeals primary judge's orders did not have any operative legal effect — Whether there was a “matter” within meaning of Ch III of Constitution at time Full Court made orders determining appeals — Whether there was a justiciable controversy before Full Court — Whether Full Court had jurisdiction to determine appeals.
Words and phrases — “advisory opinion”, “appellate jurisdiction”, “federal jurisdiction”, “immediate right, duty or liability”, “judicial power of the Commonwealth”, “jurisdiction”, “justiciable controversy”, “matter”, “standing”.
Matter No M84/2022
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1. Appeal allowed with costs.
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2. Set aside the orders made by the Full Court of the Federal Court of Australia on 5 April 2022 in proceeding VID659/2021 and, in their place, order that:
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(a) the applications for leave to appeal the orders made by the Federal Court of Australia on 13 October 2021 in proceedings VID89/2021 and VID503/2021 be refused with costs; and
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(b) the appeals otherwise be dismissed with costs.
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Matter No M85/2022
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1. Appeal allowed with costs.
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2. Set aside the orders made by the Full Court of the Federal Court of Australia on 5 April 2022 in proceeding VID660/2021 and, in their place, order that:
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(a) the applications for leave to appeal the orders made by the Federal Court of Australia on 13 October 2021 in proceedings VID89/2021 and VID503/2021 be refused with costs; and
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(b) the appeals otherwise be dismissed with costs.
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On appeal from the Federal Court of Australia
Kiefel CJ, Gordon AND Steward JJ. The underlying facts “reveal an extraordinarily long deprivation of the [appellant's] liberty by way of executive detention” 1. The appellant, a citizen of Iran, arrived in Australia by boat in July 2013 and has been in immigration detention ever since, his protection visa application having been finally refused in February 2021.
The issue for decision in these appeals is narrow. Was there a “matter” within the meaning of Ch III of the Constitution before the Full Court of the Federal Court of Australia when it made the orders below? As the answer to that question is “No”, the second ground of appeal does not arise.
That is, the only issue in these appeals is whether the Full Court had jurisdiction to decide the appeals below. All courts have the duty and the authority to consider and decide whether a claim or application brought before the court is within its jurisdiction 2. As will be seen, the Full Court approached the question of whether it should hear the appeals as a matter of discretion, not jurisdiction. In allowing the appeals and overturning the orders of the primary judge, the Full Court in effect determined it did have jurisdiction and proceeded to exercise judicial power 3. It is well established that, as a superior court, the orders it made are valid until set aside, even if those orders were made in excess of jurisdiction 4. Those orders are subject to review and correction 5 by this Court in its appellate jurisdiction under s 73 of the Constitution 6. As these reasons will explain, the Full Court did not have jurisdiction when it determined the appeals. Its orders should be set aside.
It is necessary to describe the course of the two proceedings that culminate in the present appeals to this Court. That description will show that after the appellant succeeded in part at first instance and obtained orders in his favour, the Minister for Home Affairs exercised a statutory power under the Migration Act 1958 (Cth) that deprived those orders of any continuing effect. Yet, having said to the primary judge that the step the Minister had taken had wholly deprived the orders of effect, the Commonwealth parties 7 nevertheless sought to appeal to the Full Court of the Federal Court against those orders. And in that Court, the Commonwealth parties accepted that from the time of the Minister's step, and irrespective of the outcome of the appeals, the orders made by the primary judge ceased to have any continuing effect.
As will soon become apparent, the course of the proceedings took many twists and turns because the Minister exercised a statutory power and the Commonwealth parties changed their position more than once.
Following the final determination of his visa application in February 2021, the appellant commenced proceedings in the Federal Court of Australia against the Minister for Home Affairs and the Commonwealth of Australia seeking an order of habeas corpus or a writ in the nature of habeas corpus, a declaration that the appellant was falsely imprisoned, and other relief (“the habeas proceeding”). In seeking habeas corpus, the appellant sought to rely on the first instance decision in AJL20 v The Commonwealth 8.
After the hearing of the application for habeas corpus before the primary judge (Rangiah J) and while judgment was reserved, this Court delivered its judgment in The Commonwealth v AJL20 9, overturning the first instance decision. The appellant sought to amend his originating application to seek mandamus to require the Commonwealth to effect his removal to a regional processing country under s 198AD of the Act. The respondents opposed the amendment on the basis that the Federal Court lacked jurisdiction to hear and determine the application in its original jurisdiction. The appellant then commenced a proceeding in the
At the subsequent hearing before the primary judge, the appellant sought mandamus and habeas corpus. He contended that he fell within s 198AD(2) of the Act, which requires that an officer take an “unauthorised maritime arrival” to whom the provision applies, as soon as reasonably practicable, from Australia to a regional processing country. The Commonwealth parties 10 contended that s 198AD did not apply to the appellant, so the Secretary was under no duty to take him to a regional processing country. The Commonwealth parties did not contest that, if s 198AD did apply to the appellant, it was reasonably practicable to remove him to the regional processing country, Nauru.
The primary judge held that s 198AD did apply to the appellant, and that it would have been reasonably practicable to have taken him to a regional processing country by no later than the end of September 2013. The primary judge held that the refusal or failure of the Secretary to act in accordance with s 198AD warranted the making of an order in the nature of mandamus.
The primary judge made identical orders in both proceedings on 13 October 2021 (“the 13 October 2021 orders”). The primary judge dismissed the claim for a writ of habeas corpus (order 6). The primary judge made a declaration that s 198AD(2) of the Act applied to the appellant (order 1), and ordered the Secretary to perform, or cause to be performed, the duty under s 198AD(2) of the Act to take the appellant from Australia to a regional processing country as soon as reasonably practicable (order 2) (“the s 198AD mandamus order”).
The primary judge also made orders, which he described as ancillary to mandamus, that related to the appellant's detention pending performance of the s 198AD duty (orders 3 to 5). His Honour found that it was presently reasonably practicable to remove the appellant to Nauru, but observed that the Commonwealth parties had failed to even begin the process of effecting the taking of the appellant to Nauru and “[i]t could be weeks, or months, or longer”. The appellant sought an order that he be detained at the home of one of his supporters, as this would minimise the harm to his mental health suffered as a result of the failure to comply with s 198AD. The appellant relied on an affidavit of Ms Hermann, who deposed that she and her husband would be happy to have the appellant live with them free
of charge at their home in Perth even if the arrangement were to require the presence of a guarding officerThe primary judge ordered that, pending his removal to a regional processing country, the appellant was to be detained at the address of the...
