FCA’s jurisdiction for false imprisonment extended to other claims?

Some of the questions to the Federal Court (FCA) were as follows:

Question 1: Section 476A(1) of the Migration Act 1958 (Cth) provided that, "despite any other law, including section 39B of the Judiciary Act 1903 and section 8 of the Administrative Decisions (Judicial Review) Act 1977, the Federal Court has original jurisdiction in relation to a migration decision if, and only if", ss 476A(1)(a), (b), (c) or (d) were satisfied. Section 476A(1)(a) provided that both: "(i) the Federal Circuit and Family Court of Australia (Division 2) transfers a proceeding pending in that court in relation to the decision to the Federal Court under section 153 of the Federal Circuit and Family Court of Australia Act 2021; and "the Federal Court confirms the transfer under section 32AD of the Federal Court of Australia Act 1976". Should the fact that the applicant did not apply for an order pursuant to s 32AD of the Federal Court of Australia Act 1976 (Cth) be a reason why such an order should not be made?

Question 2: Can it be said that s 476A does not operate to exclude or remove the FCA's jurisdiction to entertain the applicant’s claim for damages for false imprisonment and for relief in the nature of habeas corpus, "despite the fact that the applicant’s claims relating to false imprisonment involve a collateral challenge to a migration decision"?

Question 3: Can it be said that, "had the applicant filed an originating application which simply sought relief in the nature of mandamus to compel the Commonwealth, through its officers, to perform the duty to remove him from Australia pursuant to s 198 of the Migration Act, the effect of s 476A would be to deprive the Court of jurisdiction to entertain that claim", as a "claim for relief in the nature of mandamus in respect of the duty under s 198 of the Migration Act would ordinarily involve direct judicial review of a migration decision"?

Question 4: Can it be said that "the exercise of the power to issue an injunction under s 75(v) of the Constitution is informed by the principles historically applied in respect of that remedy by courts administering equity"?

Question 5: If the answer to Question 4 is 'yes', does it "follow that a mandatory injunction issued against an officer of the Commonwealth is incapable of being characterised as a public law remedy"?

Question 6: Can it be said that "that the mandatory injunction sought by him to compel officers of the Commonwealth to fulfil their duty under s 198 is “in aid of the enforcement of private law rights”"?

Question 7: Can it be said that "despite the broad definition of “decision” in s 474(3) of the Migration Act, it is somewhat difficult to see why an injunction compelling officers to perform a duty [under s 198] which they have failed or refused to perform necessarily involves “reviewing” the officers’ failure or refusal to perform the duty", with the result that the "fact that the mandatory injunction sought by the applicant may be capable of being characterised as a public law remedy does not, however, mean that it necessarily involves direct judicial review of a migration decision such as to engage s 476A"?

Question 8: Can it be said that "an injunction may issue to restrain a Commonwealth officer from exceeding or abusing power in circumstances where there has been no jurisdictional error"?

Question 9: If the answer to Question 9 is 'yes', does that mean that the mandatory injunction sought by the Applicant compelling the discharge of the duty under s 198 is conceptually different from mandamus, which favours the conclusion that the mandatory injunction does not involve direct judicial review of a migration decision?

Question 10: If the FCA has jurisdiction to determine a claim for damages for false imprisonment and habeas corpus on the basis that the Respondent failed to remove him from Australia as mandated by s 198 of the Migration Act 1958 (Cth), does 476A operate to remove or exclude the FCA's jurisdiction to entertain the applicant’s claims for injunctive relief requiring the Respondent to discharge its duty under s 198 or its jurisdiction to declare that the Respondent failed to comply with that duty?

Question 11: Did the Applicant bear "the onus of proving that the Commonwealth had failed to discharge, or had been dilatory in the discharge of, its duty to remove him from Australia as soon as reasonably practicable"?

Question 12: If the answer to Question 11 is 'yes', does the discharge of that onus "necessarily require the applicant to prove that there was a third country in which he has a right of residence"?

Question 13: Can it be said in light of s 9(1A)(b)(i) of the Australian Passports Act 2005 (Cth) that, "if the absence of a travel document was in fact an issue in relation to the removal of the applicant, there was some scope for the Minister, on his or her own initiative, to issue a “travel-related” document to the applicant"?

Question 14: Would it be "reasonable for the Commonwealth to remove an unlawful non-citizen to a country, other than their country of nationality or ordinary residence, whether voluntarily or involuntarily, simply on the basis that, in the ordinary course, a traveller might be able to arrive and remain in that country for a period of time, either without a visa, or with a visa obtained upon arrival"?

Question 15: Is injunctive relief "generally only granted in the public law context where the prerogative or constitutional writs are inadequate to compel the Executive government and administrative bodies to operate within the limits of their powers"?

Question 16: In Plaintiff S297, the High Court issued a peremptory writ of mandamus commanding the Minister to grant the plaintiff a protection visa. Rule 25.13.6 provided that if the act commanded by the writ has not been done, the HCA may issue a writ of peremptory mandamus or make "any other orders necessary". "Unlike the High Court Rules, however, the Federal Court Rules 2011 (Cth) do not provide a specific procedure in respect of a writ of mandamus or prescribe any form of writ". Does that mean that "an appropriate form of writ cannot be fashioned to replicate [in the FCA] the form of the writ in the High Court Rules" or that "the procedure as explained in Plaintiff S297 cannot be replicated in [the FCA]"?

Question 17: If the answer to Question 11 is 'yes', does the discharge of that onus require the applicant to prove that "purpose of removal has been abandoned"?

Question 18: Can it be said that "there would be no utility in issuing a writ of mandamus which compelled the Commonwealth to discharge the duty in s 198"?

Question 19: In circumstances where "it was the Commonwealth in AJL20 (HC) that submitted that the duty to remove an unlawful non-citizen as soon as reasonably practicable may attract mandamus", did it "[border] on the disingenuous for the Commonwealth to suggest in this matter that the issue of a writ of mandamus could have no utility in enforcing the duty to remove in s 198"?

Question 20: Can it be said that "that one discretionary consideration which tends to weigh against making a declaration is that the declaration in question would produce no foreseeable consequence for the parties"?

The FCA answered those questions as follows: