Minister for Home Affairs v DMA18 as litigation guardian for DLZ18 [2020] HCA 43

HIGH COURT OF AUSTRALIA

KIEFEL CJ, BELL, GAGELER, KEANE AND GORDON JJ

Matter No M27/2020

MINISTER FOR HOME AFFAIRS & ORS APPELLANTS

AND

DMA18 AS LITIGATION GUARDIAN FOR DLZ18 & ANOR RESPONDENTS

Matter No M28/2020

MINISTER FOR HOME AFFAIRS & ANOR APPELLANTS

AND

MARIE THERESA ARTHUR AS LITIGATION REPRESENTATIVE FOR BXD18 RESPONDENT

Matter No M29/2020

MINISTER FOR HOME AFFAIRS & ANOR APPELLANTS

AND

FRX17 AS LITIGATION REPRESENTATIVE FOR FRM17 RESPONDENT

Matter No M30/2020

MINISTER FOR HOME AFFAIRS & ANOR APPELLANTS

AND

DJA18 AS LITIGATION REPRESENTATIVE FOR DIZ18 RESPONDENT

Minister for Home Affairs v DMA18 as litigation guardian for DLZ18 Minister for Home Affairs v Marie Theresa Arthur as litigation representative for BXD18 Minister for Home Affairs v FRX17 as litigation representative for FRM17 Minister for Home Affairs v DJA18 as litigation representative for DIZ18 [2020] HCA 43 Date of Hearing: 1 September 2020 Date of Judgment: 2 December 2020 M27/2020, M28/2020, M29/2020 & M30/2020

ORDER

In each of Matter Nos M27/2020 and M29/2020:

1. Appeal allowed.

2. Set aside paragraph 1 of the orders made by the Full Court of the Federal Court of Australia on 28 August 2019 and, in its place, order:

"1. The questions ordered to be separately answered be determined as follows:

Questions:

(a) When the proceeding was commenced in the Federal Court of Australia, was the effect of s 494AB of the Migration Act 1958 (Cth) that it could not be instituted? and

(b) Is the effect of s 494AB of the Migration Act 1958 (Cth) that the proceeding cannot be continued in the Federal Court of Australia?

Answers:

(a) No, but the respondents, if so advised, could have sought, in an appropriate case, to plead that s 494AB applied to the proceeding; and

(b) No, but the respondents, if so advised, may seek to plead that s 494AB applies to the proceeding and, if permitted to do so, may apply for an order that continuation of the proceedings as then framed be stayed. Whether amendment of pleadings should be allowed or a stay granted are matters to be determined."