Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v AZC20

• Jurisdiction: Australia Federal only
• Judgment Date: 05 April 2022
• Neutral Citation: [2022] FCAFC 52
• Date: 05 April 2022
• Court: Full Federal Court (Australia)

Federal Court of Australia

Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v AZC20 [2022] FCAFC 52

Appeal from:	AZC20 v Minister for Home Affairs [2021] FCA 1234
File number(s):	VID 659 of 2021VID 660 of 2021
Judgment of:	JAGOT, MORTIMER AND ABRAHAM JJ
Date of judgment:	5 April 2022
Catchwords:	MIGRATION – appeal from a decision of the Federal Court of Australia – where primary judge granted declaratory relief regarding the application of 198AD(2) to the respondent – where primary judge compelled Secretary of Department of Home Affairs to remove respondent as soon as reasonably practicable from Australia – where primary judge ordered detention of respondent occur at property of members of the public – whether orders were interlocutory in character – whether detention orders related to being “in the company of, and restrained by” an officer or other authorised person – whether Migration Act 1958 (Cth) s 198AD(2) applied to person subject to favourable decision under s 46A(2) – appeal allowed
Legislation:	Federal Court of Australia Act 1976 (Cth) s 23 Migration Act 1958 (Cth) ss 5(1), 5(9), 5(9A), 5AA, 46A, 46A(1), 46A(2), 198, 198(6), 197C, 198D, 198AD(1), 198AD(2), 198AE, 198AE(1), 198AG Migration Legislation Amendment (Regional Processing and Other Measures) Act 2012 (Cth) Migration Amendment (Unauthorised Maritime Arrivals and Other Measures) Act 2013 (Cth) Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014 (Cth) Federal Court Rules 2011 (Cth) r 35.13
Cases cited:	AJL20 v Commonwealth of Australia [2020] FCA 1305; 279 FCR 549 Al Khafaji v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1369 Al Masri v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1009; 192 ALR 609 Al-Kateb v Godwin [2004] HCA 37; 219 CLR 562 Anying Group Pty Ltd v Wang [2012] FCA 702 ARJ17 v Minister for Immigration and Border Protection [2018] FCAFC 98 Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union [2018] HCA 3; 262 CLR 157 AZC20 v Minister for Home Affairs [2021] FCA 1234 Commonwealth of Australia v AJL20 [2021] HCA 21; 95 ALJR 567 Deputy Commissioner of Taxation v Huang [2021] HCA 43; 96 ALJR 43 Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v FAK19 [2021] FCAFC 153 Plaintiff M61/2010E v Commonwealth [2010] HCA 41; 243 CLR 319 Plaintiff M70/2011 v Minister for Immigration and Citizenship (The Malaysian Declaration Case) [2011] HCA 32; 244 CLR 144 Plaintiff S4/2014 v Minister for Immigration and Border Protection [2014] HCA 34; 253 CLR 219 Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; 194 CLR 355 Secretary, Department of Immigration and Multicultural and Indigenous Affairs v Mastipour [2004] FCAFC 93; 259 FCR 576 WAIS v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1625
Division:	General Division
Registry:	Victoria
National Practice Area:	Administrative and Constitutional Law and Human Rights
Number of paragraphs:	113
Date of hearing:	8 February 2022
Counsel for the Appellants:	Ms A Mitchelmore SC with Mr P Knowles and Mr B McGlade
Solicitor for the Appellants:	Australian Government Solicitor
Counsel for the Respondent:	Mr M Albert with Ms K Brown
Solicitor for the Respondent:	Clothier Anderson & Associates

ORDERS

		VID 659 of 2021 VID 660 of 2021
BETWEEN:	MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS First Appellant ; COMMONWEALTH OF AUSTRALIA Second Appellant ; SECRETARY, DEPARTMENT OF HOME AFFAIRS Third Appellant
AND:	AZC20 Respondent

order made by:	Jagot, Mortimer and Abraham JJ
DATE OF ORDER:	5 April 2022

THE COURT ORDERS THAT:

1. If and to the extent that leave to appeal is required to pursue an appeal from orders 3-5 of the orders of the Court made on 13 October 2021 in Federal Court proceedings VID89/2021 and VID503/2021:

   1. the requirements of r 35.12 and r 35.14 of the Federal Court Rules 2011 (Cth) be dispensed with;

   2. the time for filing of an application for leave to appeal be extended to 11 November 2021; and

   3. leave to appeal from orders 3-5 of the orders dated 13 October 2021 in proceedings VID89/2021 and VID503/2021 be granted.

2. The appellants have leave to rely on the amended notices of appeal filed on 25 March 2022.

3. The appeals in VID 659/2021 and VID660/2021 be allowed.

4. Orders 1-5 of the orders dated 13 October 2021 in each of VID89/2021 and VID503/2021 be set aside and in lieu thereof order in VID503/2021 that the application be dismissed.

5. The appellants pay the respondent’s reasonable costs of the appeals, payable by way of an agreed single lump sum for both appeals, or, in default of agreement, payable by way of a single lump sum to be fixed by a Registrar.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

THE COURT:

Introduction

1. This case is an appeal from orders made in two separate proceedings before the primary judge, being orders made on 13 October 2021 in VID89/2021 and VID503/2021. The terms of the impugned orders are relevantly identical, but because of the course the proceedings had taken before the primary judge, orders needed to be made in each proceeding. In summary, the impugned orders compelled the Secretary of the Department of Home Affairs to remove the respondent from Australia pursuant to s 198AD(2) of the Migration Act 1958 (Cth) as soon as reasonably practicable, and declared s 198AD(2) to be the removal provision applicable to the respondent. Until that occurred, the impugned orders required the respondent to be detained at the property of two members of the public who had volunteered to have him live in their house, while remaining (so it was contended) in immigration detention.

2. The underlying facts of the appeals reveal an extraordinarily long deprivation of the respondent’s liberty by way of executive detention. It is understandable that, having failed to secure a visa in Australia, the respondent has instructed his lawyers to seek any available avenue for him to regain his freedom. However, we are unable to agree with the view taken by the primary judge of the relevant provisions in the Migration Act and the Federal Court of Australia Act 1976 (Cth), and we consider the appeals must be allowed.

Factual background

3. The respondent is a citizen of Iran. He arrived by boat in Australia on 15 July 2013, and falls within the definition of an “unauthorised maritime arrival” in s 5AA of the Migration Act. Since his arrival nine years ago, and at the time of trial before the primary judge, he has been held in immigration detention.

4. The respondent’s status as an unauthorised maritime arrival meant he was prohibited from making a visa application, including a protection visa application, in Australia unless the Minister dispensed with that prohibition by the exercise of a personal power conferred by s 46A of the Migration Act. On 13 August 2015 the Minister exercised that power favourably to the respondent and on 6 October 2015 he applied for a temporary protection visa. A delegate of the Minister refused that application on 9 May 2018.

5. Under...