Where Minister's Section 198AE(1) Migration Act, 157 determination had effectively quelled the controversy between the parties, did the Full Court have jurisdiction to determine the appeals?

AZC20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] HCA 26 (6 September 2023)

Intro:-

This is an appeal from the Full Court of the Federal Court of Australia.

Facts:-

The underlying facts "reveal an extraordinarily long deprivation of the [appellant's] liberty by way of executive detention". 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

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").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 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").

Subsequently, the Minister for Home Affairs exercised the discretionary power in s 198AE of the Act to determine that the duty to remove to a regional processing country under s 198AD did not apply to the appellant ("the s 198AE Determination").About twelve days later, on 10 November 2021, the Commonwealth parties filed notices of appeal to the Full Court of the Federal Court from orders 1 to 5 and 8 of the 13 October 2021 order.

Full Court of the Federal Court

Before the Full Court, the Commonwealth parties made submissions on what they described as the "preliminary issue" of the utility of the appeals. The Commonwealth parties accepted that, irrespective of the outcome of the appeals and from the time of the s 198AE Determination, the duty in s 198(6) of the Act was applicable, and the s 198AD mandamus order and the home detention order ceased to have effect. However, the Commonwealth parties submitted that the appeals were not futile for two reasons. First, the issues in the appeals had a "substantive overlap" with the s 198 mandamus proceeding.

And second, even if the substantive issues were rendered moot, the Commonwealth parties emphasised that the Full Court retained a discretion to hear the appeals on the basis that there was a significant public interest because, as at 14 October 2021, there were approximately 130 persons potentially affected by the primary judge's conclusion that the applicable duty for persons in the appellant's position was the s 198AD duty and there were a number of proceedings on foot in which the issue of the Federal Court's power to make home detention orders was being agitated.

In its reasons for judgment, the Full Court considered the "preliminary issue" as a question of discretion, not jurisdiction. Relevantly, the Full Court held that the s 198AE Determination had "effectively" quelled the controversy between the parties about the application of s 198AD to the appellant and that this meant that "the order in the nature of mandamus was rendered inapplicable, and there was no basis for the [home detention order] to be carried into effect".

However, while the Full Court accepted that the s 198AD mandamus order had been rendered moot, the Full Court did not accept the appellant's submission that the primary judge's orders were entirely "arid" in respect of any effect on the appellant's own position. The Court observed that the appellant still had the s 198 mandamus proceeding before the primary judge, in which he was seeking mandamus to compel his removal to a country other than Iran, that "a decision about his status under the ... Act, and which removal provisions apply to him, may be relevant to the issues between the parties in relation to any outstanding relief"[16], and that the Federal Court's ability to make a home detention order "will also clarify some likely aspects of the proceeding still before the primary judge" (emphasis added).

The second reason given by the Full Court as to why it should deal with the Commonwealth parties' substantive arguments and proceed to determine the appeals was that the primary judge's orders and reasoning had "been employed in litigation relating to other individuals in similar circumstances, and other justices of [the Federal Court] have been invited to follow it".

The Full Court said:-

"Once that occurs, given the [Commonwealth parties'] position on the issues, it would place another single judge in a position of deciding if they are convinced the primary judge's orders and reasoning are wrong ... These appeals are a suitable vehicle to avoid single judges being faced with those issues of comity, which are not always straightforward." (emphasis added)

Issue:-

Where at time of appeals primary judge's orders did not have any operative legal effect, was there was a "matter" within meaning of Ch III of Constitution at time Full Court made orders determining appeals?

Consideration:-

What is a matter?

It is trite that federal jurisdiction arising from the subject matters in ss 75 and 76 of the Constitution is limited to deciding "matters". The original and appellate jurisdiction of the Federal Court is created by legislation passed under s 77(i) of the Constitution. Section 77(i) empowers Parliament to make laws, with respect to any of the matters mentioned in ss 75 and 76, defining the jurisdiction of any federal court other than the High Court. The need for there to have been a "matter" before the Full Federal Court for it to have had jurisdiction in the appeals was not in dispute[19].

It is well established that a "matter" does not mean a legal proceeding between parties or a bare description of a subject matter that falls within a head of federal judicial power in ss 75 and 76 of the Constitution. Rather, "matter" has two elements: "the subject matter itself as defined by reference to the heads of jurisdiction [in ss 75 and 76], and the concrete or adequate adversarial nature of the dispute sufficient to give rise to a justiciable controversy". There was no dispute in this case that the first element was satisfied.

As to the second element, as was most recently affirmed in Unions NSW v New South Wales ("Unions [No 3]"), "[e]xceptional categories aside, there can be no 'matter' within the meaning of Ch III of the Constitution unless 'there is some immediate right, duty or liability to be established by the determination of the Court' in the administration of a law and unless the determination can result in the Court granting relief which both quells a controversy between parties and is available at the suit of the party seeking that relief". The requirement to identify some "immediate right, duty or liability" to be established by the determination of the court "reinforces that the controversy that the court is being asked to determine is genuine, and not an advisory opinion divorced from a controversy". That requirement applies in both original and appellate jurisdiction.

Unions [No 3] was a matter in original jurisdiction. The concept of "matter" has been most often analysed in the context of original jurisdiction. That is unsurprising because, usually, the existence of a matter on appeal is uncontroversial. That requires explanation.

An appeal is against orders, not reasons for judgment. The respective rights, duties or liabilities of the parties have been determined by the orders that have been made by the court below, including, usually, an order as to costs. There has been an exercise of judicial power; the whole or part of the controversy between the parties has been quelled. Where a final judgment has been rendered, the rights and obligations in controversy, as between those persons, cease to have an independent existence: they "merge" in the final judgment and no action can be brought upon the extinguished rights and obligations. However, orders may be set aside on appeal where the primary judge is shown to have erred. An appellate court is then obliged, unless the matter is remitted for rehearing, to "give the judgment which in its opinion ought to have been given in the first instance".

On appeal, therefore, the question is not whether the party can establish the claimed legal right, duty or liability, as that question has been determined. The question is not whether the party continues to have the interest necessary to obtain relief, because that question has been overtaken by the grant of relief or by the refusal of relief. The question on appeal and for determination on appeal is whether the orders of the primary judge should be affirmed, varied or reversed – that is, whether the appeal should be allowed and, if so, what orders should be made in the place of the primary judge's orders. But the appellate court's supervisory function over the exercise of original jurisdiction by the primary judge is not an end in itself. The second element required to form a "matter" still applies – there must be a controversy over some immediate right, duty or liability. Usually, there is a live controversy because the orders of the primary judge continue to have effect in determining the parties' rights, duties or liabilities, unless set aside on appeal. In seeking to appeal the orders made at first instance, one or more of the parties are seeking to challenge the continuing effect of the orders on the determination of their respective rights, duties or liabilities. As will be explained, that critical feature – any controversy over the continuing effect of the orders on the parties' rights, duties or liabilities – was absent in the appeals before the Full Federal Court.

There was no matter in the Full Federal Court

The appellant submitted before this Court that there was no "matter" before the Full Federal Court because the orders that the Commonwealth parties sought to appeal had no operative legal effect by the time the Full Court determined the appeals. At the time the appeals were filed, Nauru had informed Australia it would not accept the appellant and the Minister had voluntarily engaged s 198AE such that s 198AD did not apply to the appellant. Since the home detention order was dependent on the s 198AD mandamus order, the events rendering the s 198AD mandamus order inoperative similarly made the home detention order inoperative. Even if there was a "matter" when the appeals were filed, there ceased to be a "matter" from the moment during the hearing when the Commonwealth parties undertook not to seek the costs of the trial or the appeals. Those submissions should be accepted.

Conclusion:-

The Full Court did not have jurisdiction to determine the appeals. The appeals to this Court should be allowed with costs.