FCC jurisdiction limited to judicial review?

Federal Court (Full Court). Is the jurisdiction of the Federal Circuit Court (FCC) conferred by s 476 of the Migration Act 1958 (Cth) limited to remedies by way of judicial review? Was the power of the FCC circumscribed in the context of the judicial review of migration decisions "because of the omission of declaratory relief from the specific public law remedies mentioned in s 75(v) of the Constitution"? If the relief sought is "hopeless, inutile and hypothetical", does it mean that the court in which it is sought lacks jurisdiction to grant the relief?

The Full Court of the Federal Court (FCAFC) said as follows:

12    The applicant’s claim for relief [at the Federal Circuit Court] is as follows (errors in the original):

1.    Injunction restraining the respondents’ officers or agents from removing the applicant from Australia pending the hearing and determination of these proceedings.

2.    Injunction restraining the respondents from relying on their administration of their removal obligations under ss 198AD(2) and 198(1) of the Act between 23 October 2019 and 1 March 2021 in relation to the applicant as having been carried out in accordance with law.

3.    Declaration that from 23 October 2019 the applicant no longer needed to be in Australia for the temporary purpose for which he had been brought to Australia.

4.    Declaration that the failure of the respondent’s to take the applicant from Australia to PNG as soon as reasonably practicable from 23 October 2019 to 1 March 2021 was in breach of s 198AD(2) Migration Act 1958 (Cth).

5.    Declaration that the respondents owed a duty of care to the applicant to limit the duration of the applicant’s detention to that required for the purpose of removal of the applicant to Papua New Guinea (PNG) as soon as reasonably practicable either from the time [the] applicant no longer needed to be in Australia for the temporary purpose for which he had been brought to Australia, or from the time of the applicant’s request for removal.

6.    Declaration that each of the respondents’ failure to establish a system for the assessment of the continued need of transitory persons to remain in Australia for the temporary purpose for which they brought to Australia under former s 198C Migration Act 1958 (Cth), or to establish a system to administer requests for return under s 198(1) of the Act, or to take steps to remove the applicant to PNG from either the end of his need to be in Australia from 23 October 2019 for the temporary purpose, or from the time of his request for removal on 12 December 2020; up to the grant of a bridging visa on 1 March 2021, was in breach of the respondents’ duty of care to limit the applicant’s detention.

7.    [deleted]

8.    Damages for breach of the duty of care, including aggravated and exemplary damages for the length and remoteness of the extended detention and the resulting mental anguish and anxiety suffered by the applicant.

9.    Interest pursuant to s 76 of the Federal Circuit Court of Australia Act 1999.

10.    An order the respondents pay the applicant’s costs.

11.    Any further or other orders that the Court thinks fit.

24    The migration decisions which, in this case, are said to be sufficient to ground the jurisdiction of the FCC pursuant to s 476 are:

Date of first decision: 23 October 2019 to 1 March 2021, being a failure to take the applicant as an unauthorised arrival to whom s 198AD of the Migration Act 1958 (the Act) applied from Australia to a regional processing country as soon as reasonably practicable: s 198AD(2).

Date of second decision: 12 December 2020 to 1 March 2021, being a failure to remove the applicant as soon as reasonably practicable, the applicant then being an unlawful non-citizen who had asked the Minister in writing to be so removed: s 198(1) of the Act.

Some of the questions to the FCAFC were as follows:

Question 1: Is the jurisdiction of the Federal Circuit and Family Court (FCC) conferred by s 476 of the Migration Act 1958 (Cth) limited to remedies by way of judicial review?

Question 2: Were prayers 2 and 3 framed as ones for direct judicial review of the "migration decisions" such that the FCC had jurisdiction under s 476 to hear and determine those claims for relief, even if they were wrong in law and bound to fail?

Question 3: Section 16 of the now repealed Federal Circuit Court of Australia Act 1999 (Cth) provided as follows: (1) The Federal Circuit Court of Australia may, in relation to a matter in which it has original jurisdiction, make binding declarations of right, whether or not any consequential relief is or could be claimed. (2) A proceeding is not open to objection on the ground that a declaratory order only is sought. Those provisions are now reflected in s 141 of the Federal Circuit and Family Court of Australia Act 2021 (Cth). Was the power of the FCC circumscribed in the context of the judicial review of migration decisions "because of the omission of declaratory relief from the specific public law remedies mentioned in s 75(v) of the Constitution"?

Question 4: Can prayer 1 "be characterised as remedy flowing from direct judicial review of the two nominated decisions"?

Question 5: Can prayer 2 "be characterised as remedy flowing from direct judicial review of the two nominated decisions"?

Question 6: If the relief sought is "hopeless, inutile and hypothetical", does it mean that the court in which it is sought lacks jurisdiction to grant the relief?

Question 7: Can it be said that prayers 3 and 4 are not inutile or hypothetical, as they were "claims for available relief in the nature of direct judicial review that had a purpose... underpinning and informing a claim for damages for negligence"?

Question 8: Can it be said that the "splitting of the whole matter by Parliament may lead to unwieldiness of venue for different parts of the matter"?

The FCAFC answered those questions as follows:

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