Federal Court of Australia
FEDERAL COURT OF AUSTRALIA
FRM17 v Minister for Home Affairs [2019] FCAFC 148 File numbers: VID 1388 of 2017 VID 412 of 2018 VID 776 of 2018 NSD 1183 of 2018
Judges: KENNY, ROBERTSON AND GRIFFITHS JJ
Date of judgment: 28 August 2019
Catchwords: MIGRATION – refugees on Nauru – proceedings in negligence against Commonwealth parties commenced in the Federal Court of Australia by transitory persons – whether those proceedings required by s 494AB of the Migration Act 1958 (Cth) to be commenced in the High Court of Australia – s 494AB(1), so far as relevant, provides that the following proceedings against the Commonwealth may not be instituted or continued in any court except the High Court: (a) proceedings relating to the exercise of powers under s 198B; (ca) proceedings relating to the performance or exercise of a function, duty or power under Subdiv B of Div 8 of Pt 2 in relation to a transitory person; (d) proceedings relating to the removal of a transitory person from Australia under the Migration Act PRACTICE AND PROCEDURE – determination of separate questions in each of four proceedings in the nature of test cases, those questions being: (1) when the proceeding was commenced in the Federal Court of Australia, was the effect of s 494AB of the Migration Act that it could not be instituted?; and (2) is the effect of s 494AB of the Migration Act that the proceeding cannot be continued in the Federal Court?
Legislation: Constitution ss 61, 75, Ch III Acts Interpretation Act 1901 (Cth) s 11B Home Affairs Legislation Amendment (Miscellaneous Measures) Act 2019 (Cth) Judiciary Act 1903 (Cth) s 44 Migration Act 1958 (Cth) ss 5, 5AA, 42, 46A, 189, 198AA, 198AB, 198AD, 198AE, 198AH, 198AHA, 198A, 198B, 198C, 494AA, 494AB Migration Amendment (Excision from Migration Zone) (Consequential Provisions) Act 2001 (Cth) Migration Amendment (Regional Processing Arrangements) Act 2015 (Cth) Migration Amendment (Unauthorised Maritime Arrivals and Other Measures) Act 2013 (Cth) Migration Legislation Amendment (Regional Processing and Other Measures) Act 2012 (Cth) Migration Legislation Amendment (Transitional Movement) Act 2002 (Cth)
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