FJE20 v Minister for Home Affairs [2022] FCAFC 45

Federal Court of Australia

FJE20 v Minister for Home Affairs [2022] FCAFC 45 Appeal from: FJE20 v Minister for Home Affairs [2021] FCCA 1900

File number(s): NSD 1000 of 2021

Judgment of: ALLSOP CJ, MORTIMER AND SC DERRINGTON JJ

Date of judgment: 24 March 2022

Catchwords: MIGRATION – application for an extension of time and leave to appeal from a decision of Federal Circuit Court of Australia (FCC) – primary judge held the FCC did not have jurisdiction under s 476 of the Migration Act 1958 (Cth) – where applicant an unlawful non-citizen brought to Australia for temporary purpose – applicant formerly in immigration detention in Australia but currently holds a bridging visa – applicant seeks declaratory relief concerning former detention in Australia with respect to ss 198AD and 198AH of the Migration Act and brings related claim for common law damages in negligence – whether declaratory relief sought "in relation to" a migration decision: s 476 – declaratory relief is properly characterised as "direct judicial review" of a migration decision – whether declaratory relief hypothetical or inutile and therefore does not give rise to a "matter" under s 75(v) of the Constitution – appeal allowed

Legislation: Constitution ss 75(v), 76(ii) Federal Circuit and Family Court of Australia Act 2021 (Cth) s 131 Federal Circuit Court of Australia Act 1999 (Cth) (repealed) ss 10, 14, 16, 18 Federal Court of Australia Act 1976 (Cth) ss 37M, 37N Judiciary Act 1903 (Cth) ss 39(2), 78B Migration Act 1958 (Cth) ss 5(1), 195A, 198(1), 198(1A), 198AD, 198AH, 198C (repealed), 474(2), 474(3)(e), 474(3)(g), 476, 476A, 486A Federal Court Rules 2011 (Cth) r 35.13