FRM17 v Minister for Home Affairs [2019] FCAFC 148

FRM17 v Minister for Home Affairs [2019] FCAFC 148

Negligence proceedings brought by transitory persons and founded upon common law duty, not breach of statutory duty nor challenge to exercise of statutory powers, are not proceedings relating to the exercise or performance of a function, duty, or power under the Migration Act for purposes of s 494AB(1)(a) or (ca). However, amended pleadings seeking injunctive relief expressly aimed at preventing removal from Australia fall within s 494AB(1)(d), thus attracting the bar. As a result, each proceeding must be analysed on its institution and continuation to determine whether the statutory bar applies, based on pleadings and relief sought.

Jurisdiction
Australia
Judgment Date
28 August 2019
Procedural Posture
Civil / Determination of Separate Questions (test Cases) on Jurisdiction Under S 494 AB Migration Act
Outcome
Jurisdiction questions resolved for each test case: FRM17 and DLZ18's proceedings not barred from institution or continuation in Federal Court; BXD18's proceedings not barred from institution but barred from continuation after amendment; DIZ18's proceedings barred from both institution and continuation.
Legal Topics
['jurisdiction Bar Under S 494 AB Migration Act' 'negligence Claims Against Commonwealth Parties' 'regional Processing Arrangements' 'statutory Interpretation' 'remitter Power and High Court Jurisdiction']
['migration' 'administrative Law' 'constitutional Law' 'human Rights'] ['jurisdiction Bar Under S 494 AB Migration Act' 'negligence Claims Against Commonwealth Parties' 'regional Processing Arrangements' 'statutory Interpretation' 'remitter Power and High Court Jurisdiction']

Case Brief

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Procedural Posture

Civil / Determination of Separate Questions (test Cases) on Jurisdiction Under S 494 AB Migration Act

Legal Issues

  1. 1 ['Whether negligence proceedings brought by transitory persons against Commonwealth parties are barred from institution or continuation in the Federal Court by s 494AB of the Migration Act' 'Proper construction and application of s 494AB(1)(a), (ca), and (d) of the Migration Act' 'Whether and when the bar applies to tort-based actions seeking damages and/or injunctive relief']

Ratio Decidendi

Negligence proceedings brought by transitory persons and founded upon common law duty, not breach of statutory duty nor challenge to exercise of statutory powers, are not proceedings relating to the exercise or performance of a function, duty, or power under the Migration Act for purposes of s 494AB(1)(a) or (ca). However, amended pleadings seeking injunctive relief expressly aimed at preventing removal from Australia fall within s 494AB(1)(d), thus attracting the bar. As a result, each proceeding must be analysed on its institution and continuation to determine whether the statutory bar applies, based on pleadings and relief sought.

Court Disposition

Jurisdiction questions resolved for each test case: FRM17 and DLZ18's proceedings not barred from institution or continuation in Federal Court; BXD18's proceedings not barred from institution but barred from continuation after amendment; DIZ18's proceedings barred from both institution and continuation.

Orders

  • ["FRM17 (VID 1388 of 2017): Questions (a) and (b) answered 'No'; respondents to pay applicant's costs." "DLZ18 (NSD 1183 of 2018): Questions (a) and (b) answered 'No'; respondents to pay applicants' costs." "BXD18 (VID 412 of 2018): Question (a) answered 'No'; question (b) answered 'Yes'; respondents to pay...