MANUS DETAINEE WHO WANTS TO GO TO PAPUA NEW GUINEA FORCED TO STAY IN DETENTION AND TAKE THE MATTER TO THE FEDERAL CIRCUIT COURT.

Mokhlis v Minister for Home Affairs

[2020] HCA 30

This is an original action before the High Court by a patient who was transferred from Manus Island to Australia for medical treatment. Because he was a non-citizen, he was held in immigration detention. Patient seeks a declaration that  his detention is causing him severe mental and physical pain or suffering, among others.

Facts: 

• Patient is an Afghanistan-national who came to Australia in July 2013. He was transferred to Manus Island in Papua New Guinea.
• On 5 September 2019, he was transferred from Manus Island back to Australia for the purpose of receiving medical treatment. Because he does not hold a visa, he was held in immigration detention since his arrival.
• He claims that he requested in writing to be removed from Australia to Papua New Guinea but has not received a response to his request.
• He seeks declarations from the Court that he is suffering severe mental and physical harm as a result of his detention, and that his detention has been unlawful.
• He also seeks injunctions preventing the defendants from continuing to hold him in immigration detention, and a writ of habeas corpus.
• The Ministry of Home Affairs, on the other hand, asserts that the patient has made no written request for transfer, and since the resolution of the case involves a question of fact, the case should be remitted to the Federal Circuit Court of Australia.

Issue: Is it appropriate for the High Court to remit the case to the Federal Circuit Court?

Law:

Section 44(1) of the Judiciary Act 1903 (Cth) empowers the High Court to remit the matter to the Federal Circuit Court, if that Court has jurisdiction with respect to the subject-matter and the parties.

Section 10(1) of the Federal Circuit Court of Australia Act 1999 (Cth) provides for original jurisdiction of the Federal Circuit Court including where that jurisdiction is conferred by express provision of a law made by the Commonwealth Parliament.

Section 476(1) of the Migration Act provides that, subject to certain exceptions, the Federal Circuit Court has "the same original jurisdiction in relation to migration decisions as the High Court has under paragraph 75(v) of the Constitution".

Analysis:

• There are two relevant jurisdictional hurdles that should be overcome so that the case can be remitted to the Federal Circuit Court.
• The first jurisdictional hurdle is that the case must call for a "migration decision". A migration decision is “a decision of an administrative character made, under [the Migration Act], that pertains to the doing or refusing to do an act or thing”.
• The second jurisdictional hurdle is that it is limited to an original jurisdiction "in which a writ of Mandamus or prohibition or an injunction is sought against an officer of the Commonwealth," as provided "under paragraph 75(v) of the Constitution". Paragraph 75(v) of the Constitution pertains to claims for writs of injunctions as well as ancillary or incidental remedies such as declarations.
• The Migration Act in its current form includes an Explanatory Memorandum, which provides that the purpose of the amendments to the law was to "direct nearly all migration cases to the [Federal Circuit Court], to limit the Federal Court's original jurisdiction in relation to migration cases, and to direct migration cases remitted by the High Court to the appropriate lower court”.

Conclusion: It is appropriate for the Court to remit the case to the Federal Circuit Court of Australia. The relief sought concerns two migration decisions. One is the detention of the patient and another is the immediate removal of his person from Australia. The relief sought falls under the original jurisdiction of the Federal Circuit Court, in which declarations, injunctions and a writ of habeas corpus is sought against an officer of the Commonwealth.