Federal Court of Australia
Federal Court of Australia
Commonwealth of Australia v MZZHL [2021] FCAFC 191 Appeal from: MZZHL v Commonwealth of Australia [2021] FCA 600
File number: NSD 645 of 2021
Judgment of: GRIFFITHS, PERRY AND BROMWICH jJ
Date of judgment: 2 November 2021
Catchwords: MIGRATION – appeal from decision of primary judge which held detention of unlawful non-citizen was without statutory authority and awarded $350,000 in damages – where shortly before the hearing below the Commonwealth conceded non-compliance with s 198 of the Migration Act 1958 (Cth) for one period of the appellant's immigration detention – where primary judge held "detain" in ss 5, 189 and 196 means "lawfully detain" – whether appeal had to succeed given the recent decision in Commonwealth of Australia v AJL20 [2021] HCA 21; 95 ALJR 567 – consideration of Plaintiff S4/2014 v Minister for Immigration and Border Protection [2014] HCA 34; 253 CLR 219 and related cases in light of AJL20 – combined operation of ss 189(1) and 196(1) of the Migration Act imposes duty to detain unlawful non-citizen until one of the events in s 196(1) occurs – duty to detain not conditional upon compliance with s 198(6) – hedging duties enforceable by mandamus – respondent's detention lawful – held: appeal allowed
Legislation: Migration Act 1958 (Cth) ss 4, 5, 189, 195A, 196, 198
Cases cited: AJL20 v Commonwealth of Australia [2020] FCA 1305; 279 FCR 549 Al-Kateb v Godwin [2004] HCA 37; 219 CLR 562 Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs [1992] HCA 64; 176 CLR 1 Commonwealth of Australia v AJL20 [2021] HCA 21; 95 ALJR 567 Fernando v Commonwealth of Australia [2014] FCAFC 181; 231 FCR 251 Guo v Commonwealth of Australia [2017] FCA 1355; 258 FCR 31 Lewis v Australian Capital Territory [2020] HCA 26; 94 ALJR 740 MZZHL v Commonwealth of Australia [2021] FCA 600 Plaintiff M61/2010E v Commonwealth of Australia [2010] HCA 41; 243 CLR 319 Plaintiff M76/2013 v Minister for Immigration, Multicultural Affairs and Citizenship [2013] HCA 53; 251 CLR 322 Plaintiff M79/2012 v Minister for Immigration and Citizenship [2013] HCA 24; 252 CLR 336 Plaintiff M96A/2016 v Commonwealth of Australia [2017] HCA 16; 261 CLR 582 Plaintiff S4/2014 v Minister for Immigration and Border Protection [2014] HCA 34; 253 CLR 219
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