Commonwealth of Australia v MZZHL [2021] FCAFC 191

Commonwealth of Australia v MZZHL [2021] FCAFC 191

In light of the majority reasoning in Commonwealth of Australia v AJL20 [2021] HCA 21; 95 ALJR 567, the respondent's detention remained authorised and required by ss 189(1) and 196(1) of the Migration Act 1958 (Cth) until one of the events in s 196(1) occurred, and that authority was not lost because of non-compliance with the removal duty in s 198(6). The primary judge therefore erred in holding that the respondent's detention was unlawful, grounds 1 and 2 were upheld, and the appeal was allowed.

Jurisdiction
Australia
Judgment Date
02 November 2021
Procedural Posture
Migration Appeal / Appeal From MZZHL V Commonwealth of Australia [2021] FCA 600
Outcome
Appeal allowed.
Legal Topics
['immigration Detention' 'unlawful Non Citizen' 'removal From Australia' 'statutory Construction of Migration Act 1958 (cth) Ss 189, 196 and 198' 'mandamus' 'damages for Unlawful Detention']
['migration' 'administrative and Constitutional Law and Human Rights'] ['immigration Detention' 'unlawful Non Citizen' 'removal From Australia' 'statutory Construction of Migration Act 1958 (cth) Ss 189, 196 and 198' 'mandamus' 'damages for Unlawful Detention']

Case Brief

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Procedural Posture

Migration Appeal / Appeal From MZZHL V Commonwealth of Australia [2021] FCA 600

Legal Issues

  1. 1 ["Whether ss 189(1) and 196(1) of the Migration Act 1958 (Cth) authorised the respondent's detention until he was removed under s 198(6)." 'Whether the duty to detain an unlawful non-citizen under ss 189(1) and 196(1) is conditional upon compliance with the duty to remove as soon as reasonably practicable under s 198(6).' "Whether the primary judge's conclusion that the respondent's detention was unlawful could survive the High Court's decision in Commonwealth of Australia v AJL20 [2021] HCA 21; 95 ALJR 567." 'Whether grounds concerning damages needed to be determined if the Commonwealth succeeded on liability.']

Ratio Decidendi

In light of the majority reasoning in Commonwealth of Australia v AJL20 [2021] HCA 21; 95 ALJR 567, the respondent's detention remained authorised and required by ss 189(1) and 196(1) of the Migration Act 1958 (Cth) until one of the events in s 196(1) occurred, and that authority was not lost because of non-compliance with the removal duty in s 198(6). The primary judge therefore erred in holding that the respondent's detention was unlawful, grounds 1 and 2 were upheld, and the appeal was allowed.

Court Disposition

Appeal allowed.

Orders

  • ['The appeal be allowed.' 'The orders dated 7 June 2021 be set aside and in lieu thereof it be ordered that the originating application be dismissed.' "The applicant is to pay the respondent's costs, save for the costs of the hearing, as agreed or taxed." "Within 14 days hereof, the respondent is to refund to the...