Judgement affecting the liberty of an individual?

Federal Court: s 24(1A) of the Federal Court of Australia Act 1976 provides that an appeal shall not be brought to the Federal Court (FCA) from the Federal Circuit Court (FCCA), unless the FCA gives leave to appeal. However, according to s 24(1C), leave is not required for an appeal from an interlocutory judgement affecting the liberty of an individual. Was a no-jurisdiction judgement by the FCCA an interlocutory judgement that affected the liberty of an individual?

Summary and discussion

The Appellant was granted a Bridging Visa E (BVE) and breached a condition of it. The BVE was then cancelled, with the consequence that the Appellant became an unlawful non-citizen and subject to detention. The Appellant was never detained.

The Appellant then applied for a further BVE, but that application was refused.

Although the Appellant was allowed to apply to the Tribunal for merits review of the above decisions, no merits review application was made. A few years later, the Appellant applied to the Federal Circuit Court (FCCA) for judicial review of the above decisions.

The FCCA dismissed the judicial review application on the ground that it did not have jurisdiction to determine the Appellant's claims as the decisions that were being challenged were "primary decisions" within the meaning of s 476(4) of the Migration Act 1958.

The Appellant eventually appealed the FCCA's decision to the Federal Court (FCA), but without seeking leave to appeal.

The Federal Court of Australia Act 1976 included the following provisions:

(1)  Subject to this section and to any other Act, whether passed before or after the commencement of this Act (including an Act by virtue of which any judgments referred to in this section are made final and conclusive or not subject to appeal), the Court has jurisdiction to hear and determine:

...

(d)  appeals from judgments of the Federal Circuit Court exercising original jurisdiction under a law of the Commonwealth...

...

(1A)  An appeal shall not be brought from a judgment referred to in subsection (1) that is an interlocutory judgment unless the Court or a Judge gives leave to appeal.

...

(1C)  Leave to appeal under subsection (1A) is not required for an appeal from a judgment referred to in subsection (1) that is an interlocutory judgment:

(a)  affecting the liberty of an individual

The questions to the FCA were as follows:

Question 1: was the FCCA judgement an interlocutory judgement?

Question 2: did the FCCA judgement affect the Appellant's liberty?

Question 3: was the Appellant required to seek leave to appeal?

The FCA answered as follows...

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