Federal Court. Section 24(1A) of the FCA Act provided that an appeal shall not be brought from an interlocutory judgement unless the FCA gives leave. Does Jackson apply equally to the notice of appeal filed in this case? If so, did the exception under s 24(1C) apply? Did the decision under s 501(3A) of the Migration Act 1958 (Cth) interfere with the sentence and parole orders of the District Court of NSW in violation of the separations of powers?
According to the Federal Court (FCA):
33 Section 24(1A) of the Federal Court Act provides that an appeal shall not be brought from a judgment of a single Judge exercising the original jurisdiction of the Court that is an interlocutory judgment, unless the Court or a Judge gives leave to appeal.
50 Section 24(1C)(a) of the Federal Court Act provides that leave to appeal under s 24(1A) is not required from a judgment that is an interlocutory judgment affecting the liberty of an individual.
84 The appellant has a substantial and lengthy criminal history in Australia, commencing on 11 July 2012. It is not necessary to summarise all that history. It is sufficient to note that, on 23 May 2018, the appellant was convicted and sentenced to an aggregate term of 20 months imprisonment for various offences, with a non-parole period of 15 months. These convictions and sentences were confirmed on appeal, except for the starting date of the sentences.
85 On 19 September 2018, while the appellant was serving this imprisonment, a delegate of the Minister mandatorily cancelled the appellant’s visa under s 501(3A) of the Migration Act.
86 The appellant was eligible for conditional release from custody on 13 June 2019. On that day, he was released from prison. However, he was, thereupon, detained in immigration detention pursuant to s 189(1) of the Migration Act, which provides that, if an officer knows or reasonably suspects that a person in the migration zone (other than an excised offshore place) is an unlawful non-citizen, the officer must detain the person.
In Jackson v Health Services Union  FCAFC 188: notices of objection to competency were filed in appeals which sought to challenge, without prior leave having been granted, certain interlocutory judgments, as well as the primary judgment; the Federal Court of the FCA (FCAFC) held that "although there was no requirement to obtain leave to appeal from the primary judge’s final orders made on 19 August 2015, the notice of appeal specified no other grounds of appeal in relation to those final orders other than those pleaded in respect of the interlocutory orders. Necessarily, therefore, the appeals are incompetent in their entirety".
Some of the questions to the FCA were as follows:
Question 1: Does Jackson apply equally to the notice of appeal filed in this case, where, "although the relief sought in the notice of appeal encompasses the setting aside of the order dismissing the originating application, no ground of appeal is directed to the making of that order"?
Question 2: If the answer to Question 1 is 'yes', can it be said that "the exception provided by s 24(1C) of the Federal Court Act does not apply because the judgment from which the appeal is brought, and the orders made by the primary judge, did not subject the appellant to direct incarceration or deprivation of liberty"?
Question 3: Can it be said that the s 501(3A) decision "abrogated, interfered or dissolved the sentence and parole orders of the District Court of NSW in violation of the separations of powers" or "amounted to a reversal of the District Court’s orders and curtailed the independence of the District Court and the New South Wales State Parole Authority in violation of ss 106 and 107 of the Constitution"?
The FCA answered those questions as follows:
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