Was there a “matter” before the FCAFC?

A single judge of the Federal Court (FCA) granted the appellant orders for mandamus to effect his removal to a regional processing country under s 198AD of the Migration Act 1958 (Cth) and ancillary orders that he be detained at the home of one of his supporters, as this would minimise the harm to his mental health suffered as a result of the failure to comply with s 198AD. The High Court (HCA) described the next events as follows:

13. On the day the home detention order was to come into effect, two significant events occurred. First, early that morning Nauru advised Australia it would not accept the appellant. Section 198AG of the Act provided that s 198AD did not apply to an unauthorised maritime arrival if the regional processing country, or each regional processing country (if there was more than one such country), advised an officer that the country would not accept the unauthorised maritime arrival. There was no evidence before this Court as to whether or not, at that time, Nauru was the only regional processing country designated under the Act. Second, 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").

The Commonwealth respondents appealed to the Full Court of the FCA (FCAFC).

The HCA described the subsequent events as follows:

19. ... the appellant lodged a new proceeding in the Federal Circuit and Family Court of Australia against the Secretary of the Department of Home Affairs seeking both interlocutory and final orders("the s 198 mandamus proceeding"). The grounds for the application were that the Secretary had failed to pursue or carry into effect the removal of the appellant from Australia under s 198 of the Act as soon as reasonably practicable, and that the appellant cannot lawfully be removed to Iran.

22. ... the proceeding was transferred to the Federal Court. Three weeks later, it was adjourned by the same primary judge pending the outcome of the Full Court appeals, on the basis that there appeared to be "some overlap or possibility of an overlap" between the primary judge's decision in the s 198AD mandamus proceeding and the s 198 mandamus proceeding.

23. 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^[15]. 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.

25. ... the Commonwealth parties filed amended notices of appeal in the Full Court to reflect their position that they would not seek to disturb the costs orders made below and that they would pay the appellant's costs of the appeals.

26. 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".

27. 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^[17] "will also clarify some likely aspects of the proceeding still before the primary judge" (emphasis added).

28. 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)

29. The Full Court then stated that "[w]here the primary judge's orders and reasoning are presently the subject of an appeal before [the Full] Court, it is neither efficient, nor a cost effective use of resources, to refuse to determine the correctness of those orders and that reasoning, and instead insist another case make its way up the judicial hierarchy". Not determining the appeals was said to "also introduce uncertainty in terms of when the issues raised might be resolved, and might place other judges at first instance in a difficult position". The Full Court concluded by stating that "[g]iven there are potentially 130 cases where this argument might be made, plus the three where it has been made (regardless of the outcome), it is in the interests of the administration of justice for this Court to determine both issues raised on the appeals" by the Commonwealth parties. The Full Court determined the two substantive grounds of the Commonwealth parties' appeals, allowing the appeals on both grounds ...

Some of the questions to the HCA were as follows:

Question 1: As a superior court, are orders made by the Full Court of the Federal Court valid until set aside, even if those orders were made in excess of jurisdiction?

Question 2: Are orders by the Full Court of the Federal Court which are made in excess of jurisdiction subject to review and correction by the High Court in its appellate jurisdiction under s 73 of the Constitution?

Question 3: Is federal jurisdiction arising from the subject matters in ss 75 and 76 of the Constitution limited to deciding "matters"?

Question 4: Is the original and appellate jurisdiction of the Federal Court created by legislation passed under s 77(i) of the Constitution?

Question 5: Is it necessary for there to be a "matter" before the Full Court of the Federal Court for it to have jurisdiction in an appeal?

Question 6: Does a "matter" have two elements, namely "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"?

Question 7: Is an appeal against orders, not reasons for judgment?

Question 8: Is an appellate court 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"?

Question 9: Is the appellate court's supervisory function over the exercise of original jurisdiction by the primary judge not an end in itself, with the result that there must still be a controversy over some immediate right, duty or liability?

Question 10: Can it be said that, as 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"?

Question 11: Can it be said 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"?

Question 12: If there was a "matter" when the appeals were filed, can it be said that "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"?

Question 13: Can it be said that, "so long as there is a decision made at first instance and an appeal about the correctness of the orders made at first instance, there will always be a "matter"" because, "even if the orders have no ongoing effect, because the reasons that led to the making of the orders have precedential significance"?

Question 14: Was the s 198 mandamus proceeding was part of the same "matter" as the Full Court appeals?

Question 15: Can it be said that "a controversy on an appeal about a costs order is sufficient to establish a controversy about the substantive orders to which the costs order relates"?

Question 16: Can it be said that the appellate power conferred by s 73 of the Constitution is not concerned with 'matters', with the result that, "an appeal will be within s 73 so long as it involves the exercise of judicial power or power incidental to judicial power, irrespective of whether a matter exists"?

Question 17: If the answer to Question 11 is 'yes', does it necessarily follow that the reasons of the FCAFC concerning the power to make home detention orders have no precedential effect?

The HCA answered those questions as follows: